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## SERVED: November 18, 2014 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

In The Matter Of: ) ) ) ) ) 

### DocketNo. FAA-2013-0716 TYLER PENNYWITT Respondent Case No. 2012S0150128

ORDER GRANTING IN PART AND DENYING IN PART

THE FAA'S MOTION FOR SUMMARY JUDGMENT



### OnMay 5, 2014, the Federal Aviation Administration ("FAA") filed a Motion for Summary Judgment ("Motion"). OnMay 29, 2014, Mr. Tyler Pennywitt, the Respondent, filed a Motion to Dismiss Response to Motion for Summary Judment [sic] ("Response"). ,..;, r· --- -; /"" \ .·

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### On June 10,2014,the FAA filed a Reply in Support ofMotion for Summary Judgment and Response in Oppositionto Motion to Dismiss. ("Reply"). On June 26, 2014, the parties convenedby telephone for a Summary Judgment Motion Conference, and presented oral arguments on the FAA's Motion. OnJune 27, 2014, an Order Reserving Motions, Setting Deadlines for Filing Supplemental materials and Continuing the Hearing was filed. On August 5, 2014, the FAA filed a Supplemental Submission on Motion for Summary Judgment ("FAA Supplement") On August 25, 2014, the Respondent filed a Supplemental Submission on Motion for Summary Judgment ("R Supplement"). 

### A. Summary Judgment Request for Decision The FAA's Motion seeks complete dispositive reliefon the merits ofthe one (1) 

### allegedviolation ofthe Federal Aviation Regulations ("FAR"), as well as the FAA'sproposed civil penalty of$11,000. In the alternative, the FAA seeks partial dispositive relief"to the extent deemed appropriate." (Reply, 4.) B. 

### Complaint and Proposed Civil Penalty On or about August 30,2013,the Regional Counsel for the FAA's Southern Division Office filed a Complaintwiththe U.S. Department ofTransportation's Office ofHearings. In this Complaint, the FAA alleged that on or about June 4, 2012, the Respondent committed one (1) violation ofthe FAR: 14 C.F.R. § 91.11. Pursuant to 49 U.S.C. §46301(a)-(d), the FAA proposed a total maximumpenalty of$11,000 for the alleged violation. 

### C. Standard ofReview for Summary Judgment Pursuantto 14 C.F.R. § 13.218, a party may file motions, including a motion for a decision onthe merits, in advance ofa hearing when aparty asserts thatthere is no genuine issue ofmaterial fact in dispute. Pursuantto 14 C.F.R. § 13.218(£)(5), any motion for a decision on the merits prior to a testimonial hearing is analogous to a motion for summaryjudgmentunder Rule 56 ofthe Federal Rules ofCivil Procedure. 

### Horizon AirIndustries, Inc., FAA OrderNo. 96-24, n.3 (Aug. 13, 1996); 

### StebbinsAviation, Inc., OMS No. FAA-2000-7576-16, n.3 (Aug. 30, 2004) (Initial Decision).Thepurpose ofsummaryjudgment is "to isolate, and then terminate, claims and defenses that are factually unsupported." Steven Baicker-McKee, et.al, 

### Federal Civil Rules Handbook, 1122 (WestPublishing 2012) (Rule 56)._ Pursuantto Civ. R. 56(a), a summaryjudgmentmotion may be granted if"the movant shows thatthere is no genuine dispute as to any material fact andthe movant is entitled to judgment as a matter oflaw." 

### See,Anderson v. LibertyLobbyInc., 477 U.S. 242, 247-48 (1986); 

### Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Circuit 2006). In addition, pursuantto Rule 56(f), summaryjudgment may also be granted to a non-moving party, after all parties have had notice and a reasonable time to respond. A fact is "material" ifit is capable ofaffecting the substantial outcome ofthe litigation. 

### Holcomb, 433 F.3d at 895; 

### Liberty Lobby, Inc., 477 U.S. at 248. A dispute is "genuine" ifthe evidence is such that a reasonable trier offact could return a verdict for the non-moving party.

Page 2 of 7

### See, Scott v. Harris, 5550 US 372, 380 (2007); LibertyLobbyInc., 477 US at 248, Holcomb, 433 F.3d at 895. On a motion for summaryjudgment, all evidence and inferences are to be viewed in light most favorable to the non-moving party. However, a non-moving party (e.g., the Respondent herein answering the FAA'sMotion) may not rest upon mere denials or allegations in the pleadings. Pursuantto Civ. R. 56(c), (d), and (e), a non-moving party who wishes to proceed to trial mustrespond to the motion for summaryjudgment, and setforth specific facts sufficientto showthere is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). See also, Citizens State Bankof BigLake v. Transamerica Ins. Co., 815 F.Supp. 309 (D. Minn. 1993); Baicker-McKee, et.al, supra, at 1133-34(anon-moving party may produce materials, and/or cite to materials produced or not producedby the movant in resisting the summary judgmentmotion). Pursuantto Civ. R. 

### 56 (c)(1)(A), specific facts alleged by either party may be asserted by submitting or citing to a variety ofdocuments and declarations. Materials submitted during summaryjudgmentproceedings mustbe capable ofbeing offered at trial in an admissible form. See, Baicker-McKee, et.al, supra, at 1135. Once the moving party has established a prima facie case, the burden shifts to the non-moving party to show, by affidavit or otherwise, that a genuine dispute ofmaterial fact remains for the fact-finder to resolve. !d. at 1134 On a summaryjudgmentmotion, the court does not rule on the weight ofthe evidence. See !d. at 1125 (The courtnever weighs the evidence, evaluates credibility ormakes findings on disputed facts in summaryjudgmentproceedings.). 

### D. Admissibility ofFAA's Summary Judgment Factual Proof As part ofits Motion, the FAA submitted nine (9) Exhibits, identified as FAA Exhibits C-A through C-I. At the June 26,2014 Motion Conference, the FAA's Exhibits C-A through C-1 were deemed admissible as evidence-withoutobjection-in consideration ofthis Motion. On August 5, 2014, the FAA submittedthree (3) additional Exhibits, C-J through C-L as part ofthe FAA Supplement. The Respondent did not file any objectionto these Exhibits, and they are deemed admissible as evidence for consideration ofthis Motion.

Page 3 of 7E. Admissibility ofRespondent's Summary Judgment Factual Proof As part ofhis Response, the Respondent submitted nine (9) Exhibits, identified as Exhibits R-1 through R-9. At the June 26, 2014 Motion Conference, the Respondent's Exhibits R-1 through R-9 were deemed admissible as evidence-without objection-in consideration of thisMotion. OnAugust 25, 2014, the Respondent submitted six (6) additional Exhibits, R-10 through R-15 as part ofthe Respondent's Supplement. The FAA did not file any objection to these Exhibits, and they are deemed admissible as

### e~idence for consideration ofthis Motion. F. Section 91.11 Violation- Evidentiary Discussion In this case, the FAA asserts that on June 4, 2012, the Respondent, Mr. Pennywitt, committed one (1) violation of 14 C.F.R. § 91.11 by interfering with a crewmember aboard an aircraft. Section 91.11 states: No personmay assault, threaten, intimidate, or interfere with a crewmember in theperformance ofthe crewmember's duties aboard an aircraft being operated. 14 C.F.R. § 91.11 (2014). On December 8, 2011, the FAApublished notice in the Federal Register that it was interpretingthe word "interfere" in Section 91.11 to include directing a laser, from the ground, at an aircraft. 76 Fed. Reg. 76611 (Dec. 8, 2011). Thepersonhandlingthe laser did not need to be aboard the aircraftto be inviolation ofSection 91.U. 

### !d. The facts regarding the alleged violation are not in dispute. The FAA's

### prima facie evidence included Mr. Pennywitt's discovery admissions. In essence, Mr. Pennywitt admitted that on June 4, 2012 at approximately 8:30p.m., he was inthe backyard ofhis home, located at 4483 Hanover Park Drive, Jacksonville, Florida, 32224 (Motion, Ex. C-A and C-C.) He aimed a laser light beam at a flyinghelicopter. (/d.) That same night he spoke to the police. Afterbeing advised ofhis

### Miranda rights, he confessed to the laser light activity. 

### (!d.) The FAA also submittedthe Declaration ofMr. Stephen Strickland, the pilot ofthe helicopter. Mr. Stricklandtestified thathe was flying the helicopter at 2000 feet when the laser light enteredthe cockpit. He explained howthe laser lightbeam made it "very difficult" for him to fly the aircraft. (Motion, Ex. C-B,**~** 6.)

Page 4 of7[I]t was extremelybright. The laser made reading the gauges impossible. The laser also hitthe cockpit windowmaking it difficult to impossible to see outside

....The suspect lased us about six or seven times

. . . . Each time it made reading instruments or seeing outside the cockpit difficult to impossible depending on howthe laserhit us. This also affected our night vision after the laser stopped. (Motion, Ex. C-B,**~** 4.) In addition to this evidence, the FAA submitted the plea documents from Mr. Pennywitt's criminal case inthe U.S. District Court. On April17, 2013, Mr. Pennywitt pleq guilty to one criminal felony count ofaiming a laserpointerbeam at an aircraft, in violation of 18 U.S.C. § 39A. 1The federal plea agreementincluded Mr. Pennywitt's admissionthathe had knowingly aimed the beam ofa laser pointer at an aircraft. (Motion, Ex. C-D, 2.) In his responsive materials, Mr. Pennywitt explainedthat he had not intended to harm the helicopterpilot, and had no ideathathis actions were a crime. Hehad been stargazing inhis back yard withhis three year old son, and pointingthe laserbeam at various objects inthe sky. He had no ideathatthe laser would actually reach the helicopter. (Response, 1.) This evidence, taken as a whole and viewed in a light most favorable to Mr. Pennywitt (the non-moving party) demonstrates by a preponderance ofthe evidence thatthere is no genuine dispute as to any material fact about the FAA's Section 91.11 regulatory allegation. Under Section 91.11, a violation occurs when a person takes an action that interferes with a crew member in the performance ofthe crewmember's duties aboard an aircraft. Mr. Pennywitt shined the laser beam atthe helicopter. Mr. Strickland, the pilot ofthe helicopter, was a crewmember aboard the aircraft. Mr. Pennywitt's act ofshining the laserbeam at the helicopter interfered with Mr. Strickland's duties as a pilot and crewmember. Although Mr. Pennywittpresented evidence thathe had not intended to interfere with Mr. Strickland's operation ofthe helicopter, intent is not material when determining whether a violation of 14 C.F.R. § 91.11 occurred.2 The FAA should be granted summaryjudgmentas a matter oflaw onthis part ofthe case.

1The court takesjudicial notice that 18 U.S.C. §39A was enacted by Pub.L. 112-95, and took effect on February 14, 2012 as part ofthe FAA's Modernization and Reform Act of2012. Pub. L.112-95 established a new federal, felony, criminal offense titled "Aiming a laser pointer at an aircraft." The maximum term ofimprisonment for the offense is five years.
2 Mr. Pennywitt's evidence about the circumstances ofthe event would be relevant, however, in considering what civil penalty assessment should be imposed. Page 5 of 7

### G. Proposed Civil Penalty- Evidentiary Discussion Congress has established, in 49 U.S.C. §46301, a civil penalty range of$0.00 to $11,000 related to Section 91.11 violations. This is a variable amount, subject to administrative review. In this case, the FAA has proposed that Mr. Pennywittbe assessed the maximum civil penalty of$11,000 for the violation of 14 C.F.R. § 91.11. As evidentiary support for this recommendation, the FAA submitted apartial copy ofits Sanction Guidance Policies (Exh. C-L), and then presented written arguments in support ofthe $11,000 amount. (Motion, 4-5.) As part ofthese arguments, the FAA asserted that Mr. Pennywitt's actions had been "deliberate" and therefore the maximum amount ofthe civil penalty range should be assessed. (/d.) As part of this arguement, the FAA appears to infer that Respondent's July 6, 2012 written apology to the helicopter pilot (Exh. R-3) was neither genuine nor truthful, that the Respondent's 2012 criminal conviction and punishmentfor the laser pointing (Exhs. C-C through C-G; R-13) are not relevant in consideringthe appropriate civilpenalty, and that the Respondent's financial documentation (Exhs. R-10 through R-15) need not be weighed. As noted earlier, the court does not weigh the evidence, evaluate credibility or make findings on disputed facts in summaryjudgmentproceedings. The Respondent has submitted documents and statements that indicate a genuine dispute ofmaterial fact remains on the issue of the appropriate civil penalty. The multiple written submissions in the motion record show there is a genuine issue for trial onthe issue ofthe appropriate civil penalty assessment. The FAA should notbe granted summaryjudgment as a matter Of

### law on this issue. 

### H. Conclusion Pursuant to 14 C.P.R.§ 13.218(£)(5) and Civ. R. 56, all oftheparties' admissible Exhibits were considered, as well as the applicable pleadings and documents. After having heard oral argument onthe Motion, and having reviewed all relevant caselaw, decisions, regulations, statutory authority, motions, pleadings, and being fully advised;

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### IT IS HEREBY ORDERED: 1. The FAA's Motion for Summary Judgment is granted in part. There are no genuine issues ofmaterial fact in dispute regarding the charged violation of 14 C.F.R. § 91.11, and the FAA is entitled tojudgment as a matter oflaw. 2. Theundisputed facts prove that on June 4, 2012 the Respondent committed one (1) violation of 14 C.F.R. § 91.11 whenhe directed a laser light beam, from the ground, at an helicopter flying in the air, which interfered with the helicopter pilot's performance ofhis duties while thepilot was aboard and operating the aircraft. 3. The FAA's Motion for Summary Judgment is denied in part. There are genuine issues of material fact in dispute regarding the FAA's proposed civil penalty assessment of $11,000, and the FAA is not entitled tojudgment as a matter oflaw onthe proposed penalty. 4. The Hearing scheduled for December 9, 2014- December 10,2014, in Jacksonville, Florida, at the United States Tax Court (Courtroom #6A) is re-confirmed, for the purpose ofaddressing the parties' dispute onthe issue oftheproposed civil penalty. 5. The procedures listed in the November 10, 2014 Order Setting Deadline for the Parties to File Witness Lists and Hearing Exhibits is re-confirmed. 6. For clarifications ofthis order or questions with regard to the procedures to be followed inthis case, please contact Mr. Cody L. Smith, Attorney-Advisor, at the Office of Hearings (202-366-6941.

Attachment: Service List

Page 7 of 7

### SERVICE LIST ORIGINAL & 

### ONE COPY 

### Federal Aviation Administration 800 Independence Avenue, S.W .

.Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W10003



### Mr. Christopher R. 

### Stevenson Complainant's Counsel 

### Office ofthe Regional Counsel, AS0-7 Southern Region Federal Aviation Administration P. 0. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 Mr. Tyler Pennywitt Respondent 

### 4483 Hanover Park Drive Jacksonville, FL 32224 TEL: 904-252-1356 FAX: 904-928-0909 Judge J.E. Sullivan U.S. Administrative Law Judge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 ONE COPY 

### FDMS No. FAA-2013-0716 (Civil Penalty Action)

3 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.