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<TMU>MA R 1 9 201 0 lO:14/eT . 1 O : 12/N<> . 7600OOO-47- I P- 2 

ERIC A. SEITZ 

ATTORNEY AT LAW 

A LAW CORPORATION 

ERJCA. SEITZ 1412 

LAWRENCE I. KAWASAKI 5S20 

DELLA A. BELATTI 

RONALD N.W. KIM 

820 Mililani Street 

Suite 714 

Honolulu, Hawaii 96813 

Telephone: (808) 533-7434 

Facsimile: (808) 545-3608 

Attorneys for Respondent 

7945 

8306 

— I 

CD 

U.S DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

RAYMOND H. FESSLER 

FAA DOCKET NO. CP10WP002 

(Civil Penalty Action) 

DMS No. FAA-2010-0020 

RESPONDENT FESSLER'S 

MEMORANDUM IN OPPOSTION TO COMPLAINTANT'S 

MOTION TO DEEM THE 

TRUTH OF EACH ALLEGATION ADMITTED; DECLARATION OF ERIC A. SEITZ; 

CERTIFICATE OF SERVICE 
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RESPONDENT FESSLER'S MEMORANDUM IN OPPOSITION TO COMPLAINTANT'S MOTION TO DEEM 

THE TRUTH OF EACH ALLEGATION ADMITTED 

The undersigned counsel acknowledges that we misread the notices 

received in this case and by an unintentional oversight failed to file a timely 

response to the Complaint that was received by us. Based upon the considerations 

set forth in the attached Declaration of Eric A, Seitz we request that the 

Complaintant's motion that would, in effect, default the Respondent and deny him 

a hearing be denied and that Respondent Fessler be given an extension of time to 

remedy the oversight and file his answer to the Complaint. 

DATED: Honolulu, Hawaii, MarciTlS, 2010. 

ERIC A. SEITZ 

LAWRENCE I. KAWASAKI 

DELLA A. BELATTI 

RONALD N.W. KIM 

Attorneys for Respondent 
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FRO H <THL>>MA R le t £01 0 10:1B/ST . 10 : T»/-Mo . TCOOOOO-AT 1 P •* 

U.S DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

RAYMOND H. FESSLER 

FAA DOCKET NO. CP10W1^002 

(Civil Penalty Action) 

DMS No. FAA-2010-0020 

DECLARATION OF ERICA. 

SEITZ 

DECLARATION OF ERIC A. SEITZ 

ERIC A, SEITZ hereby declares under penalty of perjury as follows: 

(1) I am an attorney licensed to practice in the States of California 

and Hawaii and the District of Columbia. 

(2) Currently 1 am engaged in a private practice in Honolulu, 

Hawaii, and I am serving as the principal attorney for Respondent Raymond 

Fessler in this matter. 

(3) I have never personally met Mr, Fessler altliough I have spoken 

with him several times by long distance telephone calls to his home in Idaho. 
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(4) I am informed that Mr. Fessler was on an airline flight to 

Hawaii, as alleged in the Complaint, when he became disoriented and was engaged 

in an altercation with members of tlie airline crew. 

(5) When the flight landed in Hawaii Mr. Fessler was arrested and 

charged with criminal offenses in the federal court. 

(6) Mr. Fessler was represented in the federal proceedings by a 

public defender because of his demonstrated inability to retain counsel at his own 

expense. 

(7) Eventually, although he did not believe he committed any 

criminal acts, Mr. Fessler agreed to accept a plea agreement because he could not 

afford to return to Hawaii to participate in a criminal trial. 

(8) According to the plea agreement, the disposition of the criminal 

case called for the payment of only a small fine and no other consequences because 

all parties to the proceedings, including the arresting FBI agent, the prosecutor, and 

the federal judge assigned to the case, concluded that Mr. Fessler had only 

minimal, if any, criminal liability and the ends of justice warranted the di:sposition 

to which everyone agreed. 

(9) Sometime after the criminal case concluded, I was requested by 

Mr. Fessler's federal public defender to assist Mr. Fessler pro bono in the instant 
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matter in which the FAA is demanding payment of a fine that it knows Mr. Fessler 

cannot afford. 

(10) In communications with the FAA 1 supplied them with tax 

returns, income and assets statements and other evidence that Mr. Fessler has not 

been employed for an extended period of time, has no significant income or assets, 

and simply caimot afford to pay a civil fine in addition to the criminal fine that 

already was assessed and paid. 

(11) Additionally, I have made it clear to FAA counsel that Mr. 

Fessler continues to deny that he ever engaged in any intentional misconduct as 

alleged in the FAA's Complaint. 

(12) Communication;; with the FAA and its counsel have been 

somewhat difficult over the past several months, and on at least one occasion the 

FAA claimed not to have received correspondence from us that was sent by 

certified mail. 

(13) Nevertheless, Mr. Fessler's denial of liability and requests for a 

hearing have been unequivocal from the inception of these proceedings. 

(14) Upon my receipt of the Complaint filed herein by FAAL counsel 

frankly I did not know when or where to file any response, and it was my 

understanding that I would receive some procedural order or other notice 
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instructing us how and when to proceed once the case had been assigned to an 

Administrative Judge. 

(15) Thus, on March 6, 2010, when I received the Procedural Order, 

I erroneously misread the direction to file an answer to the Complaint within thirty 

days of the date that 1 received the Procedural Order rather than the Complaint. 

(16) As the Administrative Judge knows, I promptly responded to 

the directive to file a memorandum regarding venue which should be indicative of 

our intention and desire to abide with all of the rules and deadlines that are 

applicable to this proceeding. 

(17) I regret and apologize for my misreading of the situation and 

my oversight in failing to file a timely answer, and I request that my oversight not 

be held against Mr. Fessler or that he suffer the loss of any of his rights as a 

consequence of my error. 

DATED: Honolulu, Hawaii, March 18, 2010. 

ERIC A. SEITZ 
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FROM <TMU>MA R T © ZOI O IO : IS^ST . IO : I=^MO . •rcooooo-»T' i R s 

CERTIFICATE OF SERVICE 

T DO HEREBY CERTIFY that one copy of the within was duly 

served this date by facsimile and United States mail, first class postage prepaid, 

addressed to the following: 

CHRISTOPHER I. MERRILL, ESQUIRE 

Office of the Regional Counsel 

Western-Pacific Region, AWP-7 

Federal Aviation Adminisatration 

P.O. Box 92007 

Los Angeles, California 90009-2007 

Attorney for Complaintant 

DATED: Honolulu, Hawaii, March 18, 2010. 

ERIC A. SEITZ