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·;''I : "! -· 0 ,6, :n: n r:, OFFICE OF HEARINGS APR 3 o· 2012 

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0 

"" WASHINGTON,DC HEARING DOCKET 

In the Matter of Brice E. Thompson, 

Respondent. 

FAA Docket No.: unassigned 

FDMS No.: FAA-2011-1119 

FAA Region: Western-Pacific 

Judge: Richard C. Goodwin 

COMPLAINANT'S MOTION FOR DECISION 

To: Honorable Richard C. Goodwin, Administrative Law Judge, and Respondent, Brice E. 

Thompson: 

COMES NOW, Complainant, Federal Aviation Administration (FAA), WesternPacific Region, by counsel, and files this Motion for Decision to issue an Order Assessing 

Civil Penalty pursuant to sections 13.218(a) and (f)(5) ofTitle 14 ofthe Code ofFederal 

~Regulations. This motion is based on the fact that Respondent has failed to respond to the 

Administrative Law Judge's Order to Respondent to Show Cause and has failed to pursue 

his appeal. 

FACTS 

1. On November 4, 2011, Respondent filed his Answer to the _Complaint, and 

advised that his new address was P.O. Box 11632, Reno, Nevada, 89510. 

2. On January 30, 2012, Complainant's First Set of Discovery to Respondent 

("Discovery Requests") was mailed to Respondent by certified mail, return receipt requested 

[tracking number 7001 Q360 0004 3958 2044], and by regular first class mail at his address 
of record at P.O. Box 11632, Reno, Nevada, 89510. (See attached Declaration of Agnes 

Ebilane.) 

3. On February 8, 2012, the envelope containing Complainant's Discovery 

2 

Requests and mailed by certified mail, return receipt requested was returned to the WesternPacific Regional Counsel's office by the United States Postal Service, and was marked 

"return to sender, attempted- not known, unable to forward." (See attached Declaration of 

Agnes Ebilane.) 

4. On February 8, 2012, the envelope containing Complainant's Discovery 

Requests and mailed by regular first class mail was returned to the Western-Pacific Regional 

Counsel's office by the United States Postal Service, and was marked "return to sender, 

attempted- not known, unable to forward." (See attached Declaration of Agnes Ebilane.) 

5. On March 28, 2012, Complainant filed a Motion to Compel, requesting that 

the Administrative Law Judge issue an Order compelling Respondent to provide separate 

and complete answers to each of the pending discovery requests served January 30, 2012, 

and that said responses be ordered served so that they are received by Complainant no later 

than Aprilll, 2012. Complainant's Motion to Compel was mailed to Respondent by 

certified mail, return receipt requested [tracking number 7011 2000 0000 5094 1222], and 

by regular first class mail at his address of record at P.O. Box 11632, Reno, Nevada, 89510. 

(See attached Declaration of Jefferey Kamberg.) 

6. On March 28, 2012, the Administrative Law Judge issued an Order to 

Respondent to Show Cause, ordering that: (1) On or before April11, 2012, Respondent shall 

file a response to the Order stating why the relief requested in Complainant's Motion should 

not be granted; and (2) On or before April 11, 2012, Respondent shall fully and completely 
3 

answer each and every matter propounded in Complainant's Discovery Requests. The 

Administrative Law Judge further ordered that absent full and complete responses to 

Ordering paragraphs 1 and 2, Respondent may be sanctioned including, but not limited to, 

allegations in the Complaint may be deemed admitted; Respondent may be precluded from 

introducing any evidence at the hearing other than his own testimony; his Request for 

Hearing may be dismissed; and/or a Default Judgment may be entered against Respondent in 

the full amount of the fine requested by Complainant in the Complaint. 

7. On April3, 2012, the envelope containing Complainant's Motion to Compel 

and mailed by regular first class mail to Respondent was returned to the Western-Pacific 

Regional Counsel's office by the United States Postal Service, and was marked "return to 

sender, attempted- not known." (See attached Declaration of Jefferey Kamberg.) 

8. On April24, 2012, t_racking number 7011 2000 0000 5094 1222 for the 

envelope containing Complainant's Motion to Compel and mailed by certified mail- returnreceipt requested was entered into the United States Postal Service website and the 

information provided indicated that on March 30, 2012, a notice was left. (See attached 

Declaration of Jefferey Kamberg.) 

9. To date, Respondent has not notified the Western-Pacific Regional Counsel's 

office of a change of address. (See attached Declaration of Jefferey Kamberg.) 

10. To date, the Western-Pacific Regional Counsel's office has not received a 

response from Respondent to Complainant's Discovery Requests, or to the Administrative 

Law Judge's Order to Show Cause, and there has not been a request for an extension of time 

in which to file any response. (See attached Declaration of Jefferey Kamberg.) 
4 

ARGUMENT 

Section 13.211(g) ofthe Rules of Practice [14 C.F.R. section 13.211(g)] states: "A 

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

was returned, that was not claimed, or that was refused, is deemed to have been served in 

accordance with this subpart. The service shall be considered valid as of the date and the 

time that the document was deposited with a contract or expressed messenger, the document 

was mailed, or personal delivery of the document was refused." Here, Complainant's 

Discovery Requests and Motion to Compel were properly addressed and were mailed to 

Respondent at the address of record he provided with his Answer by certified mail, return 

receipt requested and regular first class mail. Complainant's Discovery Requests sent by 

certified mail, return receipt requested and regular first class mail, and Complainant's 

Motion to Compel sent by regular first class mail were returned by the United States Postal 

. Service. Moreover, delivery of Complainant's Motion to Compel sent by certified mail, 

return receipt requested has been attempted, but not delivered. 1 Thus, Complainant's 

Discovery Requests and Motion to Compel were served in accordance with the Rules of 

Practice. 

Section 13.218(f)(5) of the Rules of Practice provides that the administrative law 

judge shall grant a party's motion for decision if the pleadings, depositions, answers to 

interrogatories, admissions, matters that the administrative law judge has officially noticed, 

or evidence introduced during the hearing show that there is no genuine issue of material 

fact and that the party making the motion is entitled to a decision as a matter of law. 

1 Complainant anticipates that the envelope containing Complainant's Motion to Compel and mailed by 

certified mail, return receipt requested will also be returned by the United States Postal Service. 
5 

Respondent has failed in his obligation to respond to discovery and to notify the 

Administrative Law Judge and Complainant of a change of address. Respondent has also 

failed to respond to the Administrative Law Judge's Order to Respondent to Show Cause, 

which set forth the possible sanctions Respondent would face if he did not respond, 

including dismissal of his request for a hearing and/or a default judgment. Aside from filing 

an answer to the Complaint, Respondent has effectively abandoned his appeal and his 

obligation to pursue his appeal in good faith. Respondent's recalcitrant actions, as well as 

the Administrative Law Judge's explicit warning for failure to comply, warrant a default 

judgment against him. 

Furthermore, in failing to respond to discovery, Respondent has failed to provide any 

evidence to support the denials in his answer. Respondent's failure to respond to discovery 

and the abandonment of his appeal indicate that there are no genuine issues of material fact 

in dispute. Thus, Complainant is entitled to a decision as a matter of law. 

Finally, expending government resources to hold a hearing in this matter would not 

be in the public interest and would be a waste of judicial and government resources. This 

case is currently set for hearing in Reno, Nevada on May 8, 2012- the location of 

Respondent's last known address. The Administrative Law Judge will be traveling to the 

hearing from Washington, D.C., and Complainant's counsel and Complainant's witness will 

similarly be traveling from out of state. This travel will require expending government 

resources on the costs for airfare, lodging, rental cars, and per diem. However, it is unlikely 

Respondent will even appear at the hearing; as a result of Respondent's failure to notify the 

Administrative Law Judge or Complainant of his change of address, it is not apparent that 

Respondent even received the Notice of Hearing, which was sent to Respondent at P.O. Box 
6 

11632, Reno, Nevada, 89510. Furthermore, as described above, Respondent has effectively 

abandoned his appeal. Expending government resources to hold a hearing Respondent 

apparently no longer wants is not warranted. 

Respondent assaulted a flight attendant and interfered with a crewmember in the 

performance of the crewmember's duties aboard a Southwest Airlines flight on January 4, 

2011, in violation of section 46318(a) of Title 49 of the United States Code and section 

121.580 of Title 14 of the Code of Federal Regulations. Complainant requests that the 

Administrative Law Judge issue an Order Assessing Civil Penalty in the amount of 

$5,000.00. 

The sanction requested in this case is reasonable. The FAA's publicly available 

sanction guidance table is contained in Appendix B of FAA Order 2150.38. For 

individuals, the sanction guidance table, Figure B-3-p.(1), recommends a maximum civil 

penalty for a "interference with [a] crewmember" corresponding with the section 

121.580 violation. FAA Order 2150.38, Appendix B paragraph 3.c.(9), provides that for 

violation~ covered under 49 U.S.C. § 46301(a)(5)(A) 2 committed by an individual not 

serving in the capacity of an airman, the ma~imum civil penalty range is $4,400.00 to 

$11,000.00. The sanction guidance table, Figure B-3-p.(2), recommends a civil penalty 

between $1,100.00 to $8,000.00 for "physical assault of [a] flight or cabin crewmember 

under 49 U.S.C. § 46318." 

2 49 U.S.C. § 4630l(a)(5)(A) states: "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 401 (except sections 40 I 03 (a) and (d), 40 I 05, 40 I 06 (b), 40116, and 40 117), 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; or (ii) a regulation prescribed or order issued under any provision to which clause 

(i) applies." The statutory authority for 14 CFR § 121.580 is 49 U.S.C. § 4470 I. Thus, Respondent violated 

regulations prescribed under provisions to which clause (i) of§ 4630l(a)(5)(A) applies. 
Chapter 7 ofF AA Order 2150.3B, which is also available to·the public, provides 

guidance for applying the sanction ranges listed in Appendix B. An appropriate sanction 

is determined by selecting an amount in the middle of the range listed in the sanction 

guidance table, and increasing that amount for aggravating factors and decreasing the 

amount for mitigating factors listed in Chapter 7, paragraph 4. 3 The middle ofthe range 

for a violation of section 121.580 is $7,700.00, and the middle ofthe range for a 

violation of section 46318(a) is $4,550.00. Accordingly, Complainant's selected civil 

penalty of $5,000.00 is well within the range indicated in the sanction guidance table, 

and is not arbitrary, capricious, or otherwise not according to law.4 

CONCLUSION 

Based on the foregoing, Complainant is entitled to a decision in its favor that 

Respondent committed the violations charged and should be assessed a civil penalty of 

$5,000.00. 

Respectfully submitted, 

NAOMI TSUDA 

Regional Counsel 

By: ~eN~ Lindsay M. Nlfkamura 

Attorney 

Dated: April25, 2012 

3 FAA Order 2150.3B, paragraph 5.b.(3). 4 See 49 U.S.C. § 44709(d)(3) 

7 
FAA Docket No.: unassigned 

FDMS No.: FAA-2011-1119 

CERTIFICATE OF SERVICE 

Document Title: Complainant's Motion for De~ision 

I hereby certify that on this date I sent via United States mail, postage prepaid, the executed 

original and one copy, as well as one copy by facsimile, ofthe above-referenced document, 

addressed as follows: 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1000 

Facsimile: (202) 493-5142 

I further certify that on this date I sent via United States mail, -postage prepaid, one copy, as 

well as one copy by facsimile, ofthe above-referenced document, addressed as follows: 

Hon. Richard C. Goodwin 

Office ofHearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. 

Washington, D.C. 20590 

Facsimile: (202) 366-7536 

I further certify that on this date I sent via United States rriail, postage prepaid, and United 

States certified mail, return-receipt requested, postage prepaid, one copy of the abovereferenced document, addressed as follows: 

Dated: April25, 2012 

Brice E. Thompson 

P.O. Box 11632 

Reno, NV 89510 

Jeffereye:~ -~diij · -

Legal Technician 

Office of the Regional Counsel 

Federal Aviation Administration 

Lawndale, California 90260 

8 
DECLARATION OF JEFFEREY KAMBERG 

I, JEFFEREY KAMBERG, declare as follows: 

All matters stated herein are within my own personal knowledge, and if called as a 

witness, I could and would competently testify as follows: 

1. I am a Legal Technician in the Office of the Regional Counsel, Federal 

Aviation Administration, Western-Pacific Region. 

2. On March 28, 2012, I mailed Complainant's Motion to Compel to Brice E. 

Thompson, FDMS No. FAA-2011-1119, by certified mail, return receipt requested [tracking 

number 7011 2000 0000 5094 1222], and by regular first class mail upon Mr. Thompson at 

his address of record at P.O. Box 11632, Reno, Nevada, 89510. A true and correct copy of 

the Certified Mail Receipt is attached as Exhibit "A". 

3. On April 3, 2012, the envelope containing Complainant's Motion to Compel 

and mailed by regular first class mail to Mr. Thompson was returned to the Western-Pacific 

Regional Counsel's office by the United States Postal Service, and was marked "return to 

sender, attempted, not known." A true and correct copy of the envelope containing 

Complainant's Motion to Compel and mailed by regular first class mail is attached hereto as 

Exhibit "B". 

4. On April 24, 2012, tracking number 7011 2000 0000 5094 1222 for the 

envelope containing Complainant's Motion to Compel and mailed by certified mail- returnreceipt requested to Mr. Thompson was entered into the United States Postal Service website, 

and the information provided indicated that on March 30, 2012, a notice was left. A true and 
correct copy of the details for tracking number 7011 2000 0000 5094 1222 found on the 

United States Postal Service's website is attached hereto as Exhibit "C". 

5. To date, Mr. Thompson has not notified this office of a change of address. 

6. To date, this office has not received a response from Mr. Thompson to 

Complainant's Discovery Requests, or to the Administratl.ve Law Judge's Order to Show 

Cause, and there has not been a request for an extension of time in which to file any response. 

I declare under penalty of perjury under the laws of the United States of America that 

the foregoing is true and correct. 

Signed this 251

h day of April, 2012, in Hawthorne, CA. 
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EXHIBIT 

II C \I 

4/24/2012 1:11 PM 
) ) 

DECLARATION OF AGNES EBILANE 

I, AGNES EBILANE, declare as follows: 

All matters stated herein are within my own personal knowledge, and if called as a 

witness, I could and would competently testify as follows: 

1. I am a Legal Technician in the Office of the Regional Counsel, Federal 

Aviation Administration, Western-Pacific Region. 

2. On January 30, 2012, I mailed Complainant's First Set of Discovery to 

Respondent ("Discovery Requests") to Brice E. Thompson, FDMS No. FAA-2011-1119, by 

certified mail, return receipt requested [tracking number 7001 0360 0004 3958 2044], and by 

regular first class mail upon Mr. Thompson at his address of record at P.O. Box 11632, Reno, 

Nevada 89510. A true and correct copy of the Certified Mail Receipt is attached as Exhibit 

"A'". 

3. On February 8, 2012, the envelope containing Complainant's Discovery 

Requests and mailed by certified mail, return receipt requested was returned to this office by 

the United States Postal Service, and was marked "return to sender, attempted- not known, 

unable to forward." A true and correct copy of the envelope containing Complainant's 

Discovery Requests and mailed by certified mail, return receipt requested is attached hereto 

as Exhibit "B". 

4. On February 8, 2012, the envelope containing Complainant's Discovery 

Requests and mailed by regular first class mail was returned to this office by the United 

States Postal Service, and was marked "return to sender, attempted - not known, unable to 
) -· 

forward." A true and correct copy of the envelope containing Complainant's Discovery 

Requests and mailed by regular first class mail is attached hereto as Exhibit "C". 

5. To date, Mr. Thompson has not notified this office of a change of address. 

6. To date, this office has not received a response from Mr. Thompson to 

Complainant's Discovery Requests, nor has there been a request for an extension of time in 

which to file a response. 

I declare under penalty of perjury under the laws of the United States of America that 

the foregoing is true and correct. 

Signed this 281

h day of March, 2012, in Hawthorne, CA. 

AGNE~EBILANE amh~ 
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EXHIBIT 
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ADMINISTRATION 

P.O. BOX 92007 

OS ANGELES, CA 9009-2007 ·· · ·· 

OFFICIAL BUSINESS 

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P. 0. BOX 1163i 

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• Complete Items 1, 2, and 3. Also complete 

item 4 if Restricted Delivery Is desired. 

• Print your name and address oh the reverse 

so that we can return the card to you. 

• Attach this card to the back of the mailplece, 

or on the front if space permits. 

1. Article Addressed to: 

Brice E. Thmnpson 

P. 0. Box] 1632 

Reno, NV 89510 

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B. Received by (Printed Name) l C. Date of Delivery 

D. Is delivery address different from Item 1? DYes 

If YES, enter delivery address below: D No 

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D Express Mall 1 D Return Receipt for Merchandise : 

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2. Article Number 

(Transfer from service labeQ 7001 0360 0004 3958 2044 

PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 
r-t:UERAL AVIATION 

ADMINISTRATION 

P.O. BOX 92007 

)S ANGELES, CA 9009-2007 

OFFICIAL BUSINESS 

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BRICE E. THOMPSON 

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