U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC 

# RECEIVED JUN 30 2014 

## HEARING DOCKET In the Matter of: DMS No.: FAA2014-0116 JOSEPH R. MARIDON, SR., Respondent FAA Region: Western Pacific Judge: Richard C. Goodwin

COMPLAINANT'S OPPOSITION TO MOTION TO DISMISS

AND REQUEST TO FIND OPPOSITION TIMELY FILED
To: Administrative Law Judge Richard C. Goodwin and Respondent: The Federal Aviation Administration ("Agency") by and through counsel, pursuant to 14 CFR § 13.218, files this Opposition to Respondent's Motion to Dismiss served by mail on May 28, 2014. Complainant further

### request~ this

### c~urt firid this opposition timely due, to its delay in the mail, and its actual receipt by Complainant on June 12,2014, or otherwise find good cause to consider this opposition:

I. ARGUMENT 1. Authoritv for Respondent's Motion andTime for Response: Respondent filed his motion citing to Rule 13.49 for authority, which prescribes a 5 dayresponse time. However, this is not a!} action brought under Subpart D ofthe Rules of Practice; rather, itis brought under Subpart G, part 13, of 14 C.F.R. Thus, the appropriate authority for the motion is Rule 13.218, which provides for an answer to a motion within 10 days ofservice. Inthis case, the postmark andcertificate ofservice indicate the motion was served by mail, properly addressedto Complainant, onMay28,2014. Rule 13.212 [14

### C.P.R.§ 13.212] provides for an additional5 days for response for documents served by mail. This would have made Complainant's Response due on or before June 12, 2014, the date itwas actually received by Complainant. However, Rule 13.2ll(h) [14 C.P.R. §13.21l(h)] indicates the service by mail, under circumstances applicable here, is a presumption. In this circumstance, the motion was not actually received by Complainant via mail until June 12, 2014. (See attached Declaration ofNaomi Tsuda.) 10 days from the date ofactual receipt is June 22,2014, which was a Sunday. Thus, Complainant submits that service ofher response on Monday, June 23, 2014, is timely, and asks the court to so fmd and consider it. Alternatively, should the court find the answer to the motion is untimely, Complainantrequests the court exercise its discretion under Rule 13.205, and fmd the delay ofactual receipt ofthe motion by Complainant to establish good cause to extend the time to
answer the motionto Monday, June 23,2014, or otherwise consider its contents.

2. Argument onMotion to Dismiss Respondent was charged with a violation ofsection 91.11 ofthe Federal Aviation Regulations (14.C.F.R. § 91.11) which states, "No person may interfere with a crewmember in the performance ofthe crewmember's duties aboard an aircraft being operated." Respondent's motion to dismiss asserts that the violation may only be charged against a

> 

### person who is onboard the aircraft, or ifthe person is outside the aircraft, he must touch the aircraft or otherwise enter the aircraft withpart ofhis body orby, "controlling an object whichtouches or enters the aircraft." (Motion, page 2, 3'd full paragraph.) Respondent also argued there was no safety impact caused by his conduct. Respondent also contends that jurisdiction rests exclusively with the airport operator, and that equitable estoppel should 2preclude Complainant from bringing this action because Respondent relied onpublications from the airport operator that he believed reflected that Clark County alone, as the airport operator, would have solejurisdiction over his conduct. Respondent acknowledges the Federal Aviation Administration ("FAA'') published its interpretation of 14 C.F.R. § 91.11 in the Federal Register, but asserts that the interpretation is limited to whether an individual onthe ground can interfere with a crewmember with a laser. (Motion, page 1, last paragraph.) Infact, the interpretation was first published by the FAA on June 1, 2011, and the interpretation is not so limited. The Respondent contends the complaint takes the interpretive language out ofcontext in extending applicability ofthe regulation to persons outside ofthe aircraft; however, the full context shows this is not true. There is no improper application ofthe interpretation, which states: "Althoughthe primary focus ofthe regulation [14 C.F.R. § 91.11], as explained in the 1999 amendments to the rule,
was persons on board the aircraft, the plain language ofthe regulation does not specifY that the person interfering with a crewmember mustbe on boardthe aircraft." (Interpretation issued to Dennis E. Roberts, June 1, 2011) The interpretation was re-published inthe Federal Register as part ofa specific media effort to advise the public ofthe dangers specifically causedby directing laser beams towards aircraft operating onthe ground and in the air. 76 FR 76611 (Dec. 8, 2011). There is nothing in the interpretation itself, nor inthe Federal Register publication, that refers to any limitation ofthe interpretation's plainlanguage analysis ofthe regulationto applicabilityto persons outside the aircraft who are only engaged in directing laser beams towards aircraft. The application ofthis regulation to persons such as Respondent is also noted inthe
case cited inRespondent's motion, Administrator v. Siegel, NTSB OrderEA-32804 (1993). Although Respondent Siegel was a pilot, at the time ofhis violation of§ 91.11, he was not 

### 3piloting an aircraft. In finding that the violation was properly charged against Mr. Siegel, the National Transportation Safety Board stated, "The Federal Aviation Regulations are not uniformly framed as applicable against certificate holders only. The instantrule is directed to all "persons," not all "certificate holders."' Siegel, p 4. Further, nowhere in the regulation, the interpretation, orthe Federal Register publicationis there a requirement that the interference be causedby any part ofthe violator's body or an object controlled by the violator's body touching or entering the aircraft, as Respondent contends. The regulation does not require an actual battery, but interference, which canbe accomplished through less thanphysical contact with the pilots in the aircraft. Respondent cannot cite to any legal support for the contentionthat something mustphysically enter ortouch the aircraft, and the plainreading ofthe regulation. To the extentthe regulation contains any ambiguity, Chevron deference is owedto the FAA's interpretation ofits own statutory authority, as Congress clearly assigned regulation of this subject matter to the FAA in 49 U.S.C. §§ 40103 and 44701. Thejurisdictional issue is similarly, resolved with Chevron deference. See City ofArlington v. F.C.C., 133 S.Ct. 1863, 1874-75 (2013). Complainant agrees that airport sponsors have the overall responsibility for the operation ofvehicles on an airport. Whether Respondent's conduct may also run afoul of
a rule or regulation ofClark County, Nevada, a matter on which Complainant does not opine, Complainant asserts there is at least concurrentjurisdiction and that the federal government is**~** free to bring this regulatory violation against Respondent in this forum. The regulation at bar is designed to address the conduct ofindividuals that interferes with crewrnembers operating aircraft. The fact that Respondent chose a motor vehicle as the instrumentality does not

1 Although Respondentholds a conunercial pilot certificate and a mechanic certificate, Complainant exercised prosecutorial discretion in bringing this case against him as an individual, ratherthan as an airman. 4remove the action from this court'sjurisdiction. 49 U.S.C. § 40103(b)(2) and 49 U.S.C. § 44701 gives broad authority to the Administrator ofthe Federal Aviation Administration to prescribe safety rules andregulations such as 14 C.F.R. 

### § 91.11, and Complainanthas reasonably assertedjurisdictionhere, where Respondent is alleged to have deliberately movedhis motor vehicle into the path ofa taxiing Vision Airlines aircraft with the intention ofpreventing the crewfrom operating the flight as they intended, and had been cleared by air traffic control to do. Respondent's reliance onequitable estoppel must also fail. As indicated in Respondent's motion atpg 5, equitable estoppel prevents a personfrom adopting a new positionthat contradicts a previous position when allowing the newpositionwould unfairly harm another personwho has relied onthe previous positionto his orher detriment. However, Respondent cannot cite to any contradictory previous positiontakenbythe agency indicating it will not enforce 14 C.F.R. 

### § 91.11 as it is inthis case. Atmost, Respondent apparently assumedit would not act, since there is nothing inRespondent's moving papers showing the agency stated itwould not take action against individuals who operated their motor vehicles inthe way Respondent is alleged to have done inthis case. Respondent's apparent assumption does notrise to the level ofdetrimental reliance under an equitable estoppel theory. Respondent's unsupported assertion onpage 6 ofhis motionthat itis inthe public interest that vehicles onthe airport be controlled bythe airport operator does not

> override the public's interest inpreventing interference with flight crews as 14 C.F.R. 

### § 91.11 provides. Respondent's argumenttoward the end ofhis motion, that there was no safety risk caused byhis actions because the Vision Airlines pilots sawhim intime to stop ignores the fact that the regulation itselfwaspromulgated bythe agency as part ofthe exercise ofits 5authority under 49 U.S.C. §§ 40103 and 44701 to prescribe minimum safety regulations and standards. The fact that the flight crew saw the Respondent's truck intime to stop does not negate the danger posed when Respondent deliberately pulled a motor vehicle into the path of
an oncoming taxiing aircraft.



### II. CONCLUSION Forthe foregoing reasons, Complainantrequests the court find this opposition timely filed, or otherwise consider it for good cause shown, and deny Respondent's Motion to Dismiss. Respectfully submitted,

# /acrwwr/4dbNAoMJTsuDA Regional Counsel Federal AviationAdministration Office ofthe Regional Counsel Western-Pacific Region
Dated: June 23, 2014

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### DECLARATION OF NAOMI TSUDA I, NAOMI TSUDA, declare as follows: I am over the age ofeighteen years. All matters stated herein are within my own personal knowledge, and ifcalled as a witness, I could, and would competently testify as follows: I. I am the Regional Counsel, FAA, Western-Pacific Region, and I am the Complainant in the matter captioned InRe Matter of: Joseph R. Maridon, Sr., FDMS No. FAA 2014-0116. 2. ·On June 12, 2014, our office received an envelope with a partially obscured postmark, containing Respondent's Motion to Dismiss, dated May 28,2014. A true and correct copy ofthe envelope containing the Motion is attached as Exhibit "A". 3. The envelope was properly addressed, and the postmark, although partially unprinted, appears to indicate May 28 or 29. 4. We received the envelope in our office on June 12,2014, without any accompanying indication ofwhy delivery was delayed by over two weeks. I declare under penalty ofperjury under the laws ofthe United States ofAmerica that the foregoing is true and correct. Signed this 23rd day ofJune, 2014, in Hawthorne, CA.

NAOMI TSUDA

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### CERTIFICATE OF SERVICE
I hereby certifY that onthis date I have sent by facsimile where indicated and placed inthe United States mail, postage prepaid, certified mail- return receipt requested Complainant's Motion to DeemAllegations Admitted, addressed as follows: ORIGINAL AND ONE COPY

ONE COPY

Dated: June 23,2014

Paralegal Specialist Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2Wl000

Ron. Richard C. Goodwin Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave., S.E. East Building Ground Floor, Room El2-230 Washington, D.C. 20590 Facsimile: (202) 366-7536 Joseph 

### R. Maridon, Jr., Respondent's Counsel Attorney at Law 6130 Elton Ave Las Vegas, Nv 89107 Walter L. Ayers, Counsel for Respondent Attorney at Law 13435 North Whitehouse Court Spokane, WA 99208

Office ofthe Regional Counsel Federal Aviation Administration Western-Pacific Region Lawndale, California 7