### U.S DEPARTMENT OF TRANSPORTATION 

# RECEIVED OFFICE OF HEARINGS WASHINGTON, DC 

## JUL -7 2014 HEARING DOCKET In 

### the Matter of: Joseph 

### R. Maridon, Sr., Respondent



### Administrative Law Judge Richard C. Goodwin DOCKET NO. FAA 2014-0116 FAA CASE NO. 2012WP190142 (Civil Penalty Action)

Respondents Reply to FAA's Opposition to Motion to Dismiss and Request to Find Opposition Timely Filed Comes now, Respondent by and through his counsel and submits this reply to the FAA's Opposition to Motion to Dismiss. With leave ofthe Court, said Reply is made and based on all the pleadings and papers on file herein and the argument ofcounsel
. 

### FAA's Untimely Response Should be Denied and Stricken. The FAA admits that its response is untimely and argues that service by mail is only a presumption 13.211(h). It ignores the fact that 13.11(d) states the date ofmailing shown on the certificate of Service or ifnone the date on the postmark controls. The Court received and filed the original on June 3, 2014, a full nine days before the FAA stamped its envelope. (Exhibit I from Hearing Docket) (undersigned counsel received Complainant's currentpleading on June 27, 2014. It is postmarked June 24, 2014) The argument for additional time is without merit regardless ofwhether counsel has 5 or 10 days to respond. Indeed, FAA Counsel's affidavit does not state when the FAAreceived it. It merely states when it was received by regional counsels' office, as evidenced bythe envelope. Furthermore, it does not allege who stamped received onthe envelope. 

### Itis very highly likely, given the size ofthe FAA that there is an internal FAA mailroom, which either picks up orreceives all mail from the post office and routes itinternally to the regional counsel's office. This is consistentwith the fact that itwas sentto the FAA's post office box. Counsel's affidavit makes no reference to internal mail handling procedures at the FAA'sWestern Pacific Regional Office nor does it contain an affidavit from a person with knowledge ofthose procedures. There is no attemptto establish or explain an internal chain ofcustody. This omission is crucial, without further detailed explanation, the FAA has not shown good cause for an untimely response andthe Court should presume that it was properly deliveredto the FAA's post office box by the post office in a timely marmer. 14 C.F.R. § 13.211(h) The FAA's argument contains glaring unresolved omissions. The FAAtherefore bears responsibility for the delay. The response is untimely and should be stricken andthe motion to dismiss grantedwith prejudice. 1

1 Respondent normally would not oppose an untimely response, submitted within a reasonable period ofseveral days and adequately explained. However, an untimely response ofthis magnitude that is essentially unexplained is unacceptable.
1The Complainant's Substantive Response The FAA's substantive response to Respondents argument consists oflegally and logically unsupported conclusions, misstatements and implications of vexatious litigation2 Most glaring ofthe factual misstatements is on p. 3,**~1:** "
... because Respondent relied on publications from the airport operatorthat he believed reflected that Clark County alone, as airport operatorwould have solejurisdiction over his conduct." That statement is blatantly misleading since Respondent clearly statedthat he relied on 

### FAA Advisory CircularACNo: 150/5210-20 and cited it twice in argument and affidavit:

"FAA Advisory Circular AC No: 150/5210-20, GROUND VEIDCLE OPERATIONS ON AIRPORTS, addresses the issue ofvehicular control. "3. APPLICABILITY. The overall responsibility for the operation ofvehicles on an airport rests with the airport operator. .. " (Respondent's Motion p.3 '\[ 4, p.4'\[4); "! am further aware that vehicular land operations on an airport are within thejurisdiction and responsibility ofthe Response note 1p.OPERATIONS ON AIRPORTS on which I have relied and continue to rely." (Exhibit A, to Motion to Dismiss, Affidavit ofJoseph R. Maridon, Sr. '\[2). Complainant attempts to assert concurrentjurisdiction, but cites no authority and makes no argument for that proposition. FAA simply makes a conclusory statement that there is "at least concurrentjurisdiction" in an attempt to salvage its delegation of jurisdictionto airport operators. This is contrary to the publishedrepresentation in FAA Advisory Circular AC No: 150/5210-20 cited above. 

### It does not address, and thus concedes Respondents preemption argument.
The Complaintrelies on an unpublished interpretation of14 C.F .R. §91.11 based on dicta inthe Federal Register, 76 FR 76611, 76612 (Dec. 8, 2011) 

### Interference With a Crewmember via Laser in an attemptto expand itsjurisdiction beyond the bounds oflegal elasticity. 3 Indeed, the very title of that publication serves clear notice ofthe limitation on its interpretationto the use ofLasers and does not extend 14 C.F .R. §91.11 to the facts alleged in the complaint. As applied in the complaint, it is vague and does not give notice ofprohibited conduct (except as to lasers) or the assertion of jurisdiction. In

### FAA v. 

### Moesser,
_ DMS No. FAA-20 11-1286 at p.**5~5** the Court stated: A cornerstone ofthe principle ofdue process is the duty ofadequate notice. In the context before us, it requires affected parties to be given fair warning ofregulated conduct. See Village of Hoffman Estates v. Flipside, 455 U.S. 489,503 (1982). From this precept the "vagueness" doctrine derives. Laws and regulations, the doctrine states, "[must] give the person ofordinary intelligence areasonable opportunity to know what is prohibited, so that he may act accordingly" (Graynedv. Rockford, 408 U.S. 104, 108 (1972)). As such, liability may not be imposed when the regulation either "forbids or
2 More egregious is the gratuitous, footnote from which one can imply a veiled threat to engage in vexatious litigation. Moreover, it is a not so subtle attempt to use pressure to encourage or coerce Respondent to settle this case in amanner favorable to the FAA. Response note 1p.4

3 It can be argued that since the publication ofFederal Register, 76 FR 76611, 76612 (Dec. 8, 2011) Inteiference With a Crewmember via Laser was "part ofa specific media effort" the intent was not to prohibit even the use of lasers but to draw media attention to their improper use. See, Complainant's Response p.3 '\[2 L13 2requires the doing ofan act in terms so vague that men ofcommon intelligence must necessarily guess at its meaning and differ as to its application" 

### (US. v. 

### Lanier, 520 U.S. 259, 266-267 (1997)). 

### The complaint clearly engages in an unpublished interpretive overreach that does not give notice or fair warning that the alleged conduct is prohibited by the FAA or has altered its official position on vehicularjurisdiction. In opposition to Respondent's estoppel argument, Complainant states, "However, Respondent cannot cite to any contradictory previous position taken bythe agency indicating that it will not enforce 14 C.F.R.§91.11 as it is in this case." (Response p5 '1[2, 11.5). This statement is misleading and a strawman .Complainant does not cite to any published opinion that takes the position 

### that itwill enforce 14 C.F.R. §91.11 as it is inthis case. Complainant's statement is thus misleading. The position to which Respondentwas clearly referring was the ceding ofthejurisdiction to the airport operator set forth in 

### FAA Advisory CircularACNo: 15015210-20 as cited above. Complainant cites 

### City of Arlington v. F.CC 133 S. Ct. 1863 (2013)for the proposition that the FAA has the authority to decide itsjurisdiction. The citation is inapposite, the question here is not its authorityto decide itsjurisdiction but whether it has ceded itto airport operators as published in 

### FAA Advisory CircularACNo: 150/5210-20. That is clearly a contradictory position to the one taken in the instant complaint. Simply, to give clear notice ofprohibited conduct or a change in jurisdiction an interpretation mustbe published. Complainant also argues that Respondent makes an unsupported assertion that it is in the public interest that vehicles onthe airport be controlled by the airport operator. 

### Responsep 5'1[2 llll. Complainant's statement is misleading because it ignores the support for the assertion in Respondent's quotation and citation to 

### City of Spokane v. Williams, 288 P. 258, 157 Wash. 120 (Wash. 1930) which predates the existence ofthe FAA. (Respondents motion p.4'1[2.) Finally, Complainant's argument that the Respondent's truck constituted a danger when the flight crew clearly saw it and stopped is without merit. In 

### Smith v. Penn Line Service, Inc., 113 S.E.2d 505, 145 W.Va. I (W.Va. 1960). The court stated in syllabus: 5. Where a truck is lawfullyparked on a city street at night with sufficient light from street lights to render such truck clearly discernible to the driver ofan approaching vehicle at such distance as to enable him to stop in the exercise ofreasonable care and it is struck in the rear by another motor vehicle) the proximate cause ofsuch accident is the striking ofthe truckby the other motor vehicle, and the owner ofthe parked truck is not liable in damages to a guest passengerriding in the other motor vehicle. 

### See also, 

### Duffv. Lykins, Ky.,306 S.W.2d 252 (Ky. 1957); 

### Powell v. GeneralAccident, Fire 

### & Life Assur. Corp., La.App., 18 So.2d 921, 922; 

### Scottv. Hoosier Engineering Co., 117 W.Va. 395, 397, 185 S.E. 553, 554 (W.Va. 1936)

3

### Thus, the danger was not from Respondent's truck (clearly visible in broad daylight) but from the inattentiveness ofthe flight crew while taking a short cut. Conclusion 

### Complainants request to fmd opposition timely filed should be denied. The Opposition to Motion to Dismiss should be stricken and the Complaint dismissed with prejudice.
Respectfully submitted, /S/ Joseph 

### R. Maridon, Jr. Joseph R. Maridon, Jr. Attorney at Law Counsel for Respondent 6130 Elton Ave. Las Vegas. NV 89107

Walter L. 

### Ayers Attorney at Law Counsel for RespQifJ.d,ent 13435 North Whitehouse Court Spokane, W A 99208

# DATED?~~**~j/**

4

## u.s DEPARTMENT OFTRANSPORTATION

# REcEIvE0
FEDERAL AVIATIONADMINISTRATION 

## JUN 03 2014
IntheMatter of: 

## HEARING DOCKET JosephR.. Maridon, Sr. FAADOCKET Respondent FAA CASE NO. 2012WP190142 (CivilPenaltyAction)



### ................Administrative Law

### Judge.Richard
..C
..Goodwin
... MOTION TO DISMISS The Respondent files his Motion To Dismiss for failure ofthe allegations inthe notice of proposed action and complaintto state a violation ofthe FAA Actor ofthis chapter 14 ofthe Code ofFederal Regulations, pursuanttothe Rules ofPractice (14 C.F.R 13.49) This Motion is made andbaseduponthe affidavit attached hereto, argument ofcounsel and all ofthe pleadings and papers on file herein. Respondent states 

### as follows: 

### L FactnalBackground The complaint alleges that on or about September 29, 2012 Respondentparked 

### his vehicle on an activetaxiway andtherebyprevented a VisionAirlines aircraft fromtaxiing for takeoff. 

### Itfurther alleges 

### the vehiclewould interfure with

### the taxiing of

### the aircraft andthereby interfered withthe flight crewmembers' performance oftheir duties 

### aboardthe aircraft. 

### It does not allege essential allegations ofan 

### entry, touching, or any contactwhatsoever withthe aircraft. Furthermore, it does not allege a safety violation.

II. Argument The complaintis insufficient onits face because ofan erroneous interpretation of

### the FAA's authority. The FAA

### lacksjurisdictiontoproceedunder the facts alleged. Jurisdictionlies with the airport operator as FAA regulations do notpreemptthe airport operator'sjurisdiction over vehicles onthe ground onanairport. The FAAshouldbe estopped from proceeding onthe facts and circumstances ofthiscase. The FAAbases its overly broad use ofl4 C.F.R. 

### §9l.ll inthis case onaninterpretation published in76 FR76611, 76612 (Dec. 8, 2011) dealingwithInterference With a Crewmember via

### Laser. Thatpublication

### is limitedto whether an individual onthe ground can interfere with a Crewmember witha laser.

### U.S DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION 

# RECEIVED

In the Matter of: Joseph R. 

### Maridon, Sr. Respondent

Richard C. Goodwin Administrative Law Judge 

# JUL -7 2014 HEARING DOCKET FAA DOCKET FAA-2014-0116
FAA CASE NO. 2012WP190142 (Civil Penalty Action)

CERTIFICATE OF SERVICE 

# rz;;rj··· I certify that on

# th~ da:y

# of.;:;;~fl.:S.._.L_::_., 2014, I have sent by facsimile where indicated and deposited in the U. ail where indicated, with postage fully prepaid, certified mail a true and correct copy of: Respondents Reply to FAA's Opposition to Motion to Dismiss and Reqnest to Find Opposition Timely Filed addressed to the following: 

### ORIGINAL & 

### ONE COPY (U.S. Mail on 6/30/2014) Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur-Wright Building-Suite 2W1000 

### ONE COPY Joseph Maridon, Sr., Respondent 9212 E. Frederick Ave Spokane, WA 99206-4303 Joseph R. Maridon,Jr., Respondent's Counsel Attorney at Law 6130 Elton Ave Las Vegas, NV 89107

### Naomi Tsuda, Complainant's Counsel Office ofthe Regional Counsel, AWP-7 Federal Aviation Administration Western-Pacific Region, P.O. Box 92007 Los Angeles, CA 90009-2007 TEL: 310-725-7100 FAX: 310-725-6816 (Served by Facsimile on 6/29/2014; U.S. Mail on 6/30/2014))
The Honorable Richard C. Goodwin, Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200New Jersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-5121 StaffAssistant FAX: 202-366-7536 (Served by FacsimillleH

# ~14; U.S. Mail on 6/30/2014)
Dated: June 30,2014


### Is/