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## APR 3 

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### WASHINGTON,DC 

# HEARING 

# DOCKET

In the Matter ofBrice E. Thompson, Respondent. FAA Docket No.: unassigned FDMS No.: FAA-2011-1119 FAA Region: Western-Pacific Judge: Richard C. Goodwin
COMPLAINANT'S MOTION FORDECISION To: Honorable Richard C. Goodwin, Administrative LawJudge, and Respondent, Brice E. Thompson: COMES NOW, Complainant, Federal Aviation Administration (FAA), WesternPacific Region, by counsel, and files this Motion for Decisionto issue an OrderAssessing Civil Penaltypursuantto sections 13.218(a) and (f)(5) ofTitle 14 ofthe Code ofFederal**~Regulations.** This motionis based onthe fact that Respondent has failed to respond to the Administrative LawJudge's Orderto Respondent to ShowCause andhas failed to pursue his appeal. FACTS 1. On November4, 2011, Respondent filed his Answerto the_Complaint, and advised that his new address was P.O. Box 11632, Reno, Nevada, 89510. 2. OnJanuary 30, 2012, Complainant's First Set ofDiscovery to Respondent ("Discovery Requests") was mailed to Respondentby certified mail, return receiptrequested [tracking number 7001 

### Q360 0004 3958 2044], and byregular first class mail at his addressofrecord at P.O. Box 11632, Reno, Nevada, 89510. (See attached Declaration ofAgnes Ebilane.) 3. OnFebruary 8, 2012, the envelope containing Complainant's Discovery 2

Requests and mailed by certified mail, return receiptrequested was returned to the WesternPacific Regional Counsel's office bythe United States Postal Service, and was marked "return to sender, attempted- not known, unable to forward." (See attached Declaration of Agnes Ebilane.) 4. OnFebruary 8, 2012, the envelope containing Complainant's Discovery Requests and mailed byregular first class mail was returned to the Western-Pacific Regional Counsel's office by the United States Postal Service, and was marked "returnto sender, attempted- notknown, unable to forward." (See attached Declaration ofAgnes Ebilane.) 5. OnMarch 28, 2012, Complainant filed a Motionto Compel, requesting that the Administrative LawJudge issue an Order compelling Respondent to provide separate and complete answers to each ofthe pending discovery requests servedJanuary 30, 2012, and that saidresponses be ordered served so that they are receivedby Complainant no later than Aprilll, 2012. Complainant'sMotionto Compel was mailedto Respondent by certifiedmail, returnreceipt requested [tracking number 7011 2000 0000 5094 1222], and by regular first class mail at his address ofrecord atP.O. Box 11632, Reno, Nevada, 89510. (See attached Declaration ofJefferey Kamberg.) 6. OnMarch 28, 2012, the Administrative LawJudge issued an Orderto Respondentto Show Cause, orderingthat: (1) On orbefore April11, 2012, Respondent shall file a response to the Order stating why the reliefrequested in Complainant'sMotion should not be granted; and (2) Onorbefore April 11, 2012, Respondent shall fully and completely

### 3

answer each and every matterpropounded 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 ofthe 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 bythe United States Postal Service, and was marked "returnto sender, attempted- not known." (See attached Declaration ofJefferey Kamberg.) 8. On April24, 2012, t_racking number 7011 2000 0000 5094 1222 for the envelope containing Complainant's Motion to Compel and mailedby certified mail- returnreceipt requested was entered into the United States Postal Service website and the information provided indicated that onMarch 30, 2012, a notice was left. (See attached Declaration ofJefferey Kamberg.) 9. To date, Respondent has not notified the Western-Pacific Regional Counsel's office ofa change ofaddress. (See attached Declaration ofJefferey 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 notbeen a request for an extension oftime inwhich to file any response. (See attached Declaration ofJefferey Kamberg.)

### 4 ARGUMENT Section 13.211(g) ofthe Rules ofPractice [14 C.F.R. section 13.211(g)] states: "A document that was properly addressed, was sent in accordance withthis subpart, and that
was returned, that was not claimed, orthat was refused, is deemed to have been served in accordance with this subpart. The service shall be considered valid as ofthe date and the time that the document was deposited with a contract or expressed messenger, the document
was mailed, or personal delivery ofthe document was refused." Here, Complainant's Discovery Requests and Motion to Compel were properly addressed and were mailed to Respondent at the address ofrecord he provided with his Answer by certifiedmail, 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 Motionto Compel sentby regular first class mail were returned by the United States Postal

.Service. Moreover, delivery ofComplainant's Motion to Compel sentby certified mail, returnreceiptrequested has been attempted, butnot 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) ofthe Rules ofPractice provides that the administrative law judge shall grant aparty'smotion for decision ifthe pleadings, depositions, answers to interrogatories, admissions, matters that the administrative lawjudge has officially noticed,
orevidence introduced during the hearing showthat there is no genuine issue ofmaterial fact and thatthe party making the motion is entitledto a decision as a matter oflaw.

1Complainant 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 LawJudge and Complainant ofa change ofaddress. 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 ifhe did not respond, including dismissal ofhis request for a hearing and/or a defaultjudgment. Aside from filing
an answer to the Complaint, Respondent has effectively abandoned his appeal and his obligationto pursue his appeal in good faith. Respondent's recalcitrant actions, as well as the Administrative LawJudge'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 inhis answer. Respondent's failure to respond to discovery and the abandonment ofhis appeal indicate that there are no genuine issues ofmaterial fact in dispute. Thus, Complainant is entitled to a decision as a matter oflaw. Finally, expending governmentresources to hold a hearing in this matterwould not beinthe public interest and would be a waste of judicial and government resources. This
case is currently set for hearing in Reno, Nevadaon May 8, 2012- the location of Respondent's last known address. The Administrative LawJudge willbe traveling to the hearing from Washington, D.C., and Complainant's counsel and Complainant's witness will similarly be traveling from out ofstate. This travel will require expending government
resources onthe costs for airfare, lodging, rental cars, and per diem. However, it is unlikely Respondent will even appear at the hearing; as a result ofRespondent's failure to notify the Administrative LawJudge or Complainant ofhis change ofaddress, it is not apparent that Respondent even received the Notice ofHearing, which was sent to Respondent at P.O. Box6 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 ofthe crewmember's duties aboard a SouthwestAirlines flight onJanuary 4, 2011, in violation ofsection 46318(a) ofTitle 49 ofthe United States Code and section 121.580 ofTitle 14 ofthe Code ofFederal Regulations. Complainantrequests that the Administrative LawJudge issue an OrderAssessing Civil Penalty in the amount of $5,000.00. The sanction requested inthis case is reasonable. The FAA's publicly available sanction guidance table is contained in Appendix B ofFAA Order 2150.38. For individuals, the sanction guidance table, Figure B-3-p.(1), recommends a maximumcivil 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 ofan 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 ofnot more than $10,000 for violating- (i) chapter 401 (except sections 40I03 (a) and (d), 40I05, 40I06 (b), 40116, and 40117), section 44502 (b) or (c), chapter447 (except sections 44717-44723), or chapter449 (except sections 44902, 44903 (d), 44904, and 44907-44909) ofthis 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. §4470I. Thus, Respondent violated regulations prescribed under provisions to which clause (i) of§ 4630l(a)(5)(A) applies.Chapter 7 ofFAA 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 ofthe range listed inthe 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 oftherange for a violation ofsection 121.580 is $7,700.00, and the middle oftherange for a violation ofsection 46318(a) is $4,550.00. Accordingly, Complainant's selected civil penalty of$5,000.00 is well withinthe range indicated in the sanction guidance table, and is not arbitrary, capricious, or otherwise not according to law.4 CONCLUSION Based onthe foregoing, Complainant is entitled to a decision in its favor that Respondent committedthe 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) 7FAA DocketNo.: unassigned FDMS No.: FAA-2011-1119 CERTIFICATE OF SERVICE

Document Title: 

### Complainant's Motion for**De~ision** Ihereby certify that on this date I sent via United States mail, postage prepaid, the executed original and one copy, as well as one copyby facsimile, ofthe above-referenced document, addressed as follows: Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 WilburWright 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 ofTransportation 1200 NewJersey Ave., S.E. Washington, D.C. 20590 Facsimile: (202) 366-7536 I further certify that on this date I sent viaUnited States rriail, postage prepaid, and United States certified mail, return-receipt requested, postageprepaid, one copy ofthe abovereferenced document, addressed as follows:

Dated: April25, 2012 Brice E. Thompson P.O. Box 11632 Reno, NV 89510

# -~diij**Jeffereye:~** · - Legal Technician Office ofthe Regional Counsel Federal Aviation Administration Lawndale, California 90260 

### 8DECLARATION OF JEFFEREY KAMBERG 

### I, JEFFEREY KAMBERG, declare as follows: All matters stated herein are within my own personal knowledge, and ifcalled 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 ofrecord 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 ofa change ofaddress. 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 arequest for an extension oftime in which to file any response. I declare under penalty ofperjury under the laws ofthe United States ofAmerica that the foregoing is true and correct. Signed this 25 1 h 

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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, Icould 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 ofrecord at P.O. Box 11632, Reno, Nevada 89510. A true and correct copy ofthe 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 ofa change ofaddress. 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 oftime in which to file a response. I declare under penalty ofperjury under the laws ofthe United States ofAmerica that the foregoing is true and correct. Signed this 28 1h 

### day ofMarch, 2012, in Hawthorne, CA.

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### Brice E. Thmnpson P. 0. Box] 1632 

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