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SERVED: November 18, 2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

In The Matter Of: ) 

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Docket No. FAA-2013-0716 

TYLER PENNYWITT 

Respondent 

Case No. 2012S0150128 

ORDER GRANTING IN PART AND DENYING IN PART 

THE FAA'S MOTION FOR SUMMARY JUDGMENT 

On May 5, 2014, the Federal Aviation Administration ("FAA") filed a Motion for 

Summary Judgment ("Motion"). 

On May 29, 2014, Mr. Tyler Pennywitt, the Respondent, filed a Motion to Dismiss 

Response to Motion for Summary Judment [sic] ("Response"). 

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On June 10,2014, the FAA filed a Reply in Support of Motion for Summary Judgment 

and Response in Opposition to Motion to Dismiss. ("Reply"). 

On June 26, 2014, the parties convened by telephone for a Summary Judgment Motion 

Conference, and presented oral arguments on the FAA's Motion. 

On June 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 relief on the merits of the one (1) alleged 
violation of the Federal Aviation Regulations ("FAR"), as well as the FAA's proposed 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 Complaint with the U.S. Department of Transportation's Office of Hearings. In 

this Complaint, the FAA alleged that on or about June 4, 2012, the Respondent committed one 

(1) violation of the FAR: 14 C.F.R. § 91.11. Pursuant to 49 U.S.C. §46301(a)-(d), the FAA 

proposed a total maximum penalty of $11,000 for the alleged violation. 

C. Standard of Review for Summary Judgment 

Pursuant to 14 C.F.R. § 13.218, a party may file motions, including a motion for a 

decision on the merits, in advance of a hearing when a party asserts that there is no genuine issue 

of material fact in dispute. Pursuant to 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 summary judgment under 

Rule 56 ofthe Federal Rules of Civil Procedure. Horizon Air Industries, Inc., FAA Order No. 

96-24, n.3 (Aug. 13, 1996); Stebbins Aviation, Inc., OMS No. FAA-2000-7576-16, n.3 (Aug. 30, 

2004) (Initial Decision). The purpose of summary judgment is "to isolate, and then terminate, 

claims and defenses that are factually unsupported." Steven Baicker-McKee, et.al, Federal Civil 

Rules Handbook, 1122 (West Publishing 2012) (Rule 56)._ 

Pursuant to Civ. R. 56( a), a summary judgment motion may be granted if "the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law." See, Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986); 

Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Circuit 2006). In addition, pursuant to Rule 56(f), 

summary judgment 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" if it is capable of affecting the substantial outcome of the 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 of fact could return a verdict for the non-moving party. 

Page 2 of 7 
See, Scott v. Harris, 5550 US 372, 380 (2007); Liberty Lobby Inc., 477 US at 248, Holcomb, 433 

F.3d at 895. 

On a motion for summary judgment, 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's Motion) may not rest upon mere denials or allegations in the 

pleadings. Pursuant to Civ. R. 56( c), (d), and (e), a non-moving party who wishes to proceed to 

trial must respond to the motion for summary judgment, and set forth specific facts sufficient to 

show there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). See 

also, Citizens State Bank of Big Lake v. Transamerica Ins. Co., 815 F.Supp. 309 (D. Minn. 

1993); Baicker-McKee, et.al, supra, at 1133-34(a non-moving party may produce materials, 

and/or cite to materials produced or not produced by the movant in resisting the summary 

judgment motion). 

Pursuant to Civ. R. 56 (c)(1)(A), specific facts alleged by either party may be asserted by 

submitting or citing to a variety of documents and declarations. Materials submitted during 

summary judgment proceedings must be capable of being 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 of material fact remains for the fact-finder to resolve. !d. at 1134 

On a summary judgment motion, the court does not rule on the weight of the evidence. 

See !d. at 1125 (The court never weighs the evidence, evaluates credibility or makes findings on 

disputed facts in summary judgment proceedings.). 

D. Admissibility of FAA's Summary Judgment Factual Proof 

As part of its 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-without objection-in consideration of this Motion. On 

August 5, 2014, the FAA submitted three (3) additional Exhibits, C-J through C-L as part of the 

FAA Supplement. The Respondent did not file any objection to these Exhibits, and they are 

deemed admissible as evidence for consideration of this Motion. 

Page 3 of 7 
E. Admissibility of Respondent's Summary Judgment Factual Proof 

As part of his 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 

this Motion. On August 25, 2014, the Respondent submitted six (6) additional Exhibits, R-1 0 

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 of this 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 person may assault, threaten, intimidate, or interfere with a crewmember in 

the performance ofthe crewmember's duties aboard an aircraft being operated. 

14 C.F.R. § 91.11 (2014). 

On December 8, 2011, the FAA published notice in the Federal Register that it was 

interpreting the word "interfere" in Section 91.11 to include directing a laser, from the ground, at 

an aircraft. 76 Fed. Reg. 76611 (Dec. 8, 2011). The person handling the laser did not need to be 

aboard the aircraft to be in violation of Section 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 in the backyard of his 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 flying helicopter. (/d.) That same night he spoke to the police. After being 

advised of his Miranda rights, he confessed to the laser light activity. (!d.) 

The FAA also submitted the Declaration of Mr. Stephen Strickland, the pilot of the 

helicopter. Mr. Strickland testified that he was flying the helicopter at 2000 feet when the laser 

light entered the cockpit. He explained how the laser light beam made it "very difficult" for him 

to fly the aircraft. (Motion, Ex. C-B, ~ 6.) 

Page 4 of 7 
[I]t was extremely bright. The laser made reading the gauges impossible. The laser also 

hit the cockpit window making 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 how the laser hit 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 in the U.S. District Court. On April17, 2013, Mr. Pennywitt pleq guilty to one 

criminal felony count of aiming a laser pointer beam at an aircraft, in violation of 18 U.S.C. § 

39A. 1 The federal plea agreement included Mr. Pennywitt's admission that he had knowingly 

aimed the beam of a laser pointer at an aircraft. (Motion, Ex. C-D, 2.) 

In his responsive materials, Mr. Pennywitt explained that he had not intended to harm the 

helicopter pilot, and had no idea that his actions were a crime. He had been stargazing in his back 

yard with his three year old son, and pointing the laser beam at various objects in the sky. He had 

no idea that the 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 of the evidence that there 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 at the helicopter. Mr. Strickland, the pilot of the helicopter, was a crewmember 

aboard the aircraft. Mr. Pennywitt's act of shining the laser beam at the helicopter interfered with 

Mr. Strickland's duties as a pilot and crewmember. Although Mr. Pennywitt presented evidence 

that he had not intended to interfere with Mr. Strickland's operation of the helicopter, intent is 

not material when determining whether a violation of 14 C.F .R. § 91.11 occurred. 2 The FAA 

should be granted summary judgment as a matter of law on this part of the case. 

1 The court takes judicial notice that 18 U.S.C. § 39A was enacted by Pub.L. 112-95, and took effect on February 

14, 2012 as part of the 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 of imprisonment 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. Pennywitt be 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 a partial copy of its Sanction Guidance Policies (Exh. C-L), 

and then presented written arguments in support ofthe $11,000 amount. (Motion, 4-5.) As part 

of these arguments, the FAA asserted that Mr. Pennywitt' s actions had been "deliberate" and 

therefore the maximum amount of the 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 punishment for the laser pointing (Exhs. C-C through C-G; R-13) are not relevant 

in considering the appropriate civil penalty, 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 summary judgment proceedings. The Respondent has submitted 

documents and statements that indicate a genuine dispute of material 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 on the issue of the appropriate civil penalty assessment. The FAA 

should not be granted summary judgment as a matter Of law on this issue. 

H. Conclusion 

Pursuant to 14 C.P.R.§ 13.218(£)(5) and Civ. R. 56, all ofthe parties' admissible 

Exhibits were considered, as well as the applicable pleadings and documents. After having heard 

oral argument on the Motion, and having reviewed all relevant caselaw, decisions, regulations, 

statutory authority, motions, pleadings, and being fully advised; 

Page 6 of 7 
IT IS HEREBY ORDERED: 

1. The FAA's Motion for Summary Judgment is granted in part. There are no genuine 

issues of material fact in dispute regarding the charged violation of 14 C.F.R. § 91.11, 

and the FAA is entitled to judgment as a matter of law. 

2. The undisputed facts prove that on June 4, 2012 the Respondent committed one (1) 

violation of 14 C.F.R. § 91.11 when he directed a laser light beam, from the ground, at an 

helicopter flying in the air, which interfered with the helicopter pilot's performance of his 

duties while the pilot 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 to judgment as a matter of law on the 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 

of addressing the parties' dispute on the issue ofthe proposed 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 of this order or questions with regard to the procedures to be followed 

in this case, please contact Mr. Cody L. Smith, Attorney-Advisor, at the Office of 

Hearings (202-3 66-6941. 

Attachment: Service List 

Page 7 of 7 
SERVICE LIST 

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 0003 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Office of the 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 of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey 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.