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 

Docket No. FAA-2015-0639 

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Case No. 2015WP270015 

ORDER DENYING 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 undersigned judge "dismiss all civil penalties against me at 

this time" 1 ("Motion to Dismiss"). The Respondent bases his motion on allegations that: ( 1) the 

burden of proof is 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. 

For the reasons explained below, the Respondent's Motion to Dismiss is denied. 

I 

1. Brief Procedural History 

The Complainant filed the complaint on April22, 2015, alleging that on November 15, 2014, 

the Respondent pointed a laser beam 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 of service ofthe complaint 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 of the need to file an answer (or a written 

motion to dismiss the complaint) within 30 days of service of the complaint. 
In a letter dated March 23, 2016, Respondent's counsel, Negar Pirzadeh, submitted a notice 

of disassociation of counsel of record 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 

Pursuant to 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) of this subpart instead of 

filing an answer, not later than 30 days after service of the 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) motion to 

strike.4 Because of the 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 of Respondent's Moti_on 

The Respondent's Motion to Dismiss was filed on August 12, 2016, over one year past the 

30-day regulatory deadline to file an answer or motion. 5 Absent good cause, a person's failure to 

file an answer shall be deemed an admission of the truth of each allegation contained in the 

complaint. 6 

The pro se Respondent stated the cause of the delay in filing this motion was that the 

documents were sent to the incorrect address. 7 The certificate of service 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 of filing 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 of proposed civil penalty to the respondent." The Respondent did not raise this 

as an issue. Regardless, the undersigned judge 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 of Proposed 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 undersigned judge's August 29, 2016 Order to 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 Order to Show 

Cause, all case related correspondence contains the Respondent's correct address. 

Docket No. FAA-2015-0639 Order Denying Motion to Dismiss, page 2 
There are additional facts to consider, however. In the case at hand, the Respondent was 

initially represented by counsel. Respondent's counsel failed to file a timely answer or motion 

and then, after the deadline to do so had passed, withdrew as counsel. 9 Additionally, the 

complaint does not advise the Respondent of the need to file an answer or motion within 30 days 

of service of the complaint.1 

° Further, there is no evidence the government counsel provided the 

pro se Respondent with a copy of the rules or separately advised him of this requirement. 11 

Because of these facts, the undersigned judge finds good cause for the late filing of this motion. 12 

4. Sufficiency of the Complaint 

In his Motion to Dismiss, the Respondent notes that portions of the January 13, 2015 EIR 

provided to him by the Complainant were redacted, thus affecting his ability to respond. 13 

Because this proceeding is still in its initial stages, the undersigned judge will consider this 

portion of the Respondent's argument as a motion to dismiss the complaint for insufficiency. 14 

According to 14 C.F.R. § 13.208(c), "A complaint shall set forth the facts 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." In administrative 

proce.edings, a complaint "is sufficient if the respondent 'understood the issue' and 'was afforded 

full opportunity' to justify its conduct during the course of the litigation." 15 

In the case at hand, the complaint satisfies the sufficiency requirements detailed in 14 C.F .R. 

§ 13.208(c). Specifically, paragraph II of the complaint alleges that on November 15, 2014, the 

9 See In re Cornwall, FAA Order No. 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 Order No. 1992-0047 at 5 (finding good cause when the complaint was silent concerning the 

requirement to file an answer). 11 See In re Richard Willford Metz, FAA Order No. 90-0003 at 7-8 (Decision and Order, Jan. 29, 1990) (finding 

good cause when the Respondent was not provided with a copy of the Rules of Practice or other guidance by the 

FAA prosecutor). 12 The regulations allow a judge to find good cause and accept late filings because a hearing is fundamental to the 

concept of administrative due process. See In re Safety Equipment and Sign Co., LTD., FAA Order No. 1992-0076 

at 5 (Decision and Order, Dec. 21, 1992) (finding that wherever possible, cases should be disposed of on the merits 

after a hearing, rather than summarily because of a procedural defect) (citing Cornwall, FAA Order No. 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), "A respondent may file a motion requesting a more definite statement of the 

allegations contained in the complaint instead of filing an answer." Ifthe Respondent believes the complaint is 

lacking in specificity, filing such a motion may be the more appropriate recourse. 15 In re Brendan Airways, LLC, FAA-2009-0032 (Order, June 7, 2010) (citing Aloha Airlines, Inc. v. Civil 

Aeronautics Bd., 598 F.2d 250,262 (D.C. Cir. 1979) (quoting NLRB v. Mackey Radio & Tel. Co., 304 U.S. 333, 350 

(1938)) and Flying Food Group, Inc. v. NLRB, 471 F.3d 178, 183 (D.C. Cir. 2006)). 

Docket No. FAA-2015-0639 Order Denying Motion to· Dismiss, page 3 
Respondent pointed a laser pointer at a Eurocopter model AS-350-B3 that was flying south of 

the intersection of the 1-80 freeway and Hilltop Drive, in Richmond, Califomia. 16 Paragraph II 

further alleges that the beam of light illuminated the aircraft's cockpit, interfering with a 

crewmember' s performance of his 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 of his 

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. 

With respect 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 that the complaint fails to state a 

violation of a provision of the 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 of a regulation prescribed under Chapter 447. The allegation in this 

case, then, states a violation consistent with the requirements described in 14 C.F.R 

§ 13.218(f)(1). 

Accordingly, the undersigned judge 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 of Title 49, section 1421 currently exists at 49 U.S.C. 

§ 44701. 21 If the Respondent believes he needs additional evidence to defend himself at 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 or refuses to produce documents or tangible items." 14 C.F.R. § 13.220(e) deals with the scope of 

Docket No. FAA-2015-0639 Order Denying Motion to Dismiss, page 4 
5. Respondent's Other Arguments 

Respondent presented several other issues that will be treated as falling under the more 

general motion to dismiss pursuant to 14 C.F.R. § 13.218(f)(2). As further explained, none of 

the issues raised by the Respondent present a valid basis for dismissal of the complaint at this 

stage of the proceeding. Generally speaking, these four arguments present factual issues with the 

Complainant's case that shall be resolved through an evidentiary hearing. 

a. Burden of Proof 

The Respondent demands the complaint be dismissed because the burden of proof is "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 of the 

complaint prior to an evidentiary hearing. Further, it is based upon an incorrect understanding of 

the burden of proof in these proceedings. In accordance with 14 C.F.R. §§ 13.223 and 13.224(a), 

the burden of proof is on the Complainant to prove their case by "a preponderance of reliable, 

probative, and substantial evidence."23 After the evidentiary hearing in this case, the 

undersigned judge will determine whether the Complainant's evidence was sufficient to meet 

this legal standard, which notably is lower than clear and convincing evidence. 24 

Because the issue of whether or not the Complainant has met its burden of proof will be 

determined after the hearing in this case, this is not a basis for dismissal at this stage of the 

proceeding. 

b. Biased Arrest Report 

In support of his argument that the Richmond Police Department's arrest report is 

biased, the Respondent focuses on the following language contained in the synopsis: "the 

djscovery and provides that "[s]ubject to the limits on discovery set forth in paragraph (t) of this section, a party may 

discover any matter that is not privileged and that is relevant to the subject matter of the proceeding." The 

Respondent may therefore file a Motion to Compel seeking an unredacted version of the EIR if the 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 indicating that the thing to be proved is highly probable 

or reasonably certain." Clear and Convincing Evidence, Black's Law Dictionary (lOth ed. 2014). This is a greater 

burden than preponderance of the evidence, the standard in most civil trials, defmed as "[t]he greater weight of the 

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 of the issue rather than the other." 

Preponderance of the Evidence, Black's Law Dictionary (10th ed. 2014). 

Docket No. FAA-2015-0639 Order Denying Motion to Dismiss, page 5 
suspect aimed a laser pointer at a CHP helicopter. "

25 The issue of whether or not the 

Respondent pointed a laser pointer at a CHP helicopter presents an issue of material fact 

that must be resolved at the hearing, as opposed to during a prehearing Motion to 

Dismiss. If the government relies upon the Richmond Police Department's arrest report 

at the hearing as evidence of the alleged violation, the Respondent will have the 

opportunity to present evidence that contradicts or undermines the arrest report. 

c. Inconsistencies with a Government Witness 

In his Motion to Dismiss, the Respondent points out multiple "discrepancies" contained in 

reports completed by the aircraft's pilot in command, CHP Officer Gavitte. 26 The information 

contained in Mr. Gavitte's reports pertains to material issues of fact. As discussed above, a 

hearing, as opposed to a Motion to Dismiss, is the appropriate venue for resolving all issues of 

material fact. Accordingly, if the Complainant presents testimony or evidence 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 Motion to Dismiss, the Respondent complains that no one has contacted Mauricio 

Alvarado, the other person in the car at the time of the 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 or undermine the Complainant's case at the hearing. The failure of the government to 

interview this person does not, of itself, 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 Pursuant to 14 C.F.R. § 13.208(d)(3), "A party may appeal the administrative law judge's ruling on the motion to 

dismiss the complaint or any part of the complaint in accordance with § 13 .219(b) of this subpart." 29 Pursuant to 14 C.F.R. § 13.218(f)(l), "lfthe administrative law judge denies the motion to dismiss the complaint 

for insufficiency, the respondent shall file an answer not later than 10 days after service of the administrative law 

Docket No. FAA-2015-0639 Order Denying Motion to Dismiss, page 6 
knowledge or information to admit or deny, each numbered paragraph of the complaint, 

as required by 14 C.P.R. § 13.209(e). 

Attachment: Service List 

DOUGLAS M. RAWALD 

Administrative Law Judge 

judge's denial of the motion." 14 C.F.R. § 13.218(f)(2}(ii) states "If the motion to dismiss is not granted, the 

respondent shall file an answer and shall serve a copy of the answer on each party not later than 10 days after service 

of the administrative law judge's ruling or order on the motion to dismiss." 

Docket No. FAA-2015-0639 Order Denying Motion to Dismiss, page 7 
SERVICE LIST -BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 000130 

Kenneth Ray Rumberger, Respondent 

2451 Church Lane, SPC 38 

San Pablo, CA 94806-5945 

Lisa Toscano, 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 ·Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-5121 Staff Assistant 

F AJ(: 202-366-7536 

Docket No. FAA-2015-0639 

(Civil Penalty Action) 

30 Service was by U.S. Mail. For service in person or by 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.