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UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

^ WASHINGTON. D.C. 

^ ^ O ro IN THE MATTER OF i^twtlVcO ' 

^ S g 0. GERALD W.KELLER -^-^Q 2 ^ iBW 

'"^ '^lia ^ S'-"'''EARING DOCKET 

"- FDMS No. FAA-2006-25869 

>" (FAA CASE NO. 2006-GL-13-0038) 

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COMPLAINANT'S REPLY IN OPPOSITION TO 

RESPONDENT'S MOTION TO VACATE DATED JULY 30, 

2007 AS ORDERED BY THE FEDERAL AVIATION 

ADMINISTRATION DECSION MAKER JANUARY 11 , 2011 

Now comes the Complainant in opposition to Respondent's Motion to Vacate 

dated July 30, 2007 as ordered by the Federal Aviation Administration 

Decisionmaker January 11, 2011, and states the following: 

STATEMENT OF MATERIAL FACTS 

1. On December 18, 2005, Respondent was involved in an incident onboard 

Air Tran Ain^ays Flight 635 at General Mitchell Field, Milwaukee, Wisconsin. 

2. On July 20. 2006, as result of that incident the Complainant issued a Notice 

of Proposed Civil Penalty to the respondent alleging violations of 49 U.S.C. 

§46318. 

3. On September 1, 2006, a Final Notice of Proposed Civil penalty was issued 

which afforded Respondent his appeal rights. 

4. On September 5, 2006\ Respondent filed request for a formal hearing in 

this matter. 

5. On September 22, 2006, Complainant filed its complaint in this action 

6. During the course of the pre-trial pleadings in this case, Respondent while 

denying the Complainant's allegations, concurrently admitted facts 

concerning that same conduct onboard the aircraft, which supported a 

violation of Section 121.580 of the Federal Aviation Regulation. 

Respondent had also reque."!ted a formal hearing in ii Icuer daxed Augu.sL 28,2006 
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7. On June 7, 2007, the Complainant amended its complaint in this action to 

add the violation of Section 121.580 of the Federal Aviation Regulation 

(FAR), and additional factual allegations arising out of Respondent's actions 

onboard Air Tran Airways Flight 635 on December 18, 2005, in accordance 

with Section 13.214 of the Rules of Practice. 

8. Respondent objected to that amendment on the basis of undue delay, as 

well as asserting the Complainant could not prove its allegations. 

9. On July 3, 2007, Administrative Law Judge Benkin issued an Order, denying 

the Complainant's amendment of the Complaint, and struck the 

amendment, finding it unfair to allow such an amendment even though 

Section 13.214 "may" permit it, finding the additional allegations 

insufficiently related to the original charges. Attached as exhibit A. 

10. Respondent had objected to the amendment, but not on that basis. 

11. In that July 3, 2007 Order, Judge Benkin directed the Complainant ,if It 

wished to charge the Respondent with interfering with crewmembers in 

violation of Section 121.580 of the FAR, that there was nothing preventing it 

from withdrawing the pending complaint and bringing a new proceeding 

charging that violation. 

12. In that same Order, Administrative Law Judge Benkin noted that the two 

year "Time-bar" to file the "new allegations" had not run and the 

Complainant was free to file a new notice allowing Respondent due process 

on the charges the Complainant had sought to add. 

13. On July 19, 2007, the Complainant in compliance and reliance upon Judge 

Benkin's Order requested that it be allowed to withdraw its complaint without 

prejudice, so that it might proceed on the "new" charges. 

14. On July 24, 2007, Administrative Law Judge Benkin issued Order granting 

the Complainant's Motion to Dismiss [its Complaint] without Prejudice, 

finding that 

...the right of an enforcement agency (o withdraw a complaint without prejudice is 

inherent in the concept of administrative enforcement of a regulatory statute. So long 

as the applicable statute of limitations has not expired, the agency is privileged to 

withdraw its initial enforcement actions and start anew. 

15. On July 30, 2007, Respondent served a Motion to Vacate and Set Aside 

that Order, on the Complainant, the FAA hearing docket, and Judge Benkin. 

16.That Motion was not served upon the FAA Decisionmaker as required by 14 

CFR 219(d). 
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17. On August 21, 2007, viewing the Respondent's as motion procedurally 

defective, In reliance upon Judge Benkin's July 3, 2007 decision, the 

Complainant withdrew its Final Notice of Proposed Civil Penalty and issued 

an Amended Notice of Proposed Civil Penalty. 

18. That Amended Notice of Proposed Civil Penalty charged violation of Section 

121. 580 of the Federal Aviation Regulations, in addition to the original 

charge of violating 49 U.S.C. § 46318, 

19. On September 25, 2007, Respondent requested an informal conference. 

20. On January 2, 2008, a telephonic informal conference was held in this 

matter in which the Respondent participated. 

21. On March 26, 2008, the second Final Notice of Proposed Civil Penalty 

issued, which afforded Respondent his appeal rights. That correspondence 

was sent to him via regular and certified mail. Respondent received the 

certified mail copy on April 2, 2008^, and the regular mail copy was not 

returned. 

22. On February 8, 2010. having received no response to the March 26, 2008 

Final Notice, the Complainant issued an Order Assessing Civil Penalty in 

this case. 

23. On February 26, 2010, Respondent filed a "Notice Of Appeal And/Or 

Request For Extension Of Time To File An Appeal", which was the first 

indicia that he wished to appeal that Final Notice, almost two years after the 

Final notice had issued. 

24.On March 5, 2010, the Complainant filed a motion to dismiss that notice of 

appeal on the basis that it was untimely 

25. On March 11, 2010, received March 16, 2010, Respondent filed a Petition 

for Review, And Dismissal Of Order Assessing Civil Penalty And/Or 

Respondent's Brief. 

26. On January 11, 2011, the FAA Decisionmaker vacated Judge Benkin's 

decision allowing the Agency to withdraw its original Complaint without 

prejudice. 

ARGUMENT 

Ihe certified letier was subsequuuiy rutumed TO Complainant Counsel's office April 22, 200R, having 

bL-cn opened with The handwritten notation "Not uL this addre.5s renirn'd lo sender" Copies of the "green 

card" mail receipt and c-rccord of delivery have previously been provide. This letter was senr ro (he same 

address lo which all previous and sub.sequent correspondence had been received by iho Respondeat, 
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THE ADMINSITRATIVE JUDGE'S ORDER GRANTING WITHDRAWAL OF 

THE COMPLAINANT'S COMPLAINT WITHOUT PREJUDICE WAS PROPER 

In accordance with Section 13.214 of the Rules of Practice, the Complainant 

timely filed as a matter of right, an amendment to its Complaint on June 7, 2007. 

The Complainant objected. On July 3, 2007 the Administrative Law Judge denied 

the Complainant's request to amend its Complaint in accordance with Section 

13.214 of the Rules of Practice, finding that allowing the Complainant's 

amendment of the Complaint, would be unfair even though Section 13.214 

"may" permit it, finding the additional allegations Insufficiently related to the 

original charges, and further ruling that if the Complainant wished to charge the 

Respondent with the "new" charge of interfering with crewmembers in violation of 

Section 121.580 of the FAR, that there was nothing preventing it from 

withdrawing the pending complaint and beginning a new proceeding charging 

those violations. In that same Order Judge Benkin, noted that at that time the two 

year "Time-bar" to file the "new allegations" had not run and the Complainant was 

free to file a new notice allowing Respondent due process on the "new" charges 

the Complainant sought to add. 

On July 19, 2007. in accordance with that Order, the Complainant requested that 

it be allowed to withdraw Its complaint without prejudice, so that it might proceed 

on the "new" charges, and allow Respondent due process on those charges. 

On July 24, 2007, Judge Benkin issued an Order granting the Complainant's 

Motion to Dismiss [its Complaint] without Prejudice. 

On July 30, 2007, Respondent served a Motion to Vacate and set aside that 

Order. 

On August 21, 2007, the Complainant withdrew its Final Notice of Proposed Civil 

Penalty and issued an Amended Notice of Proposed Civil Penalty. 

Given the Judge's ruling, an argument may lie against the statutory allegation 

being recharged since it had been asserted in the previous complaint, However, 

that argument does not exist with regard to the Section 121.580 (14 CFR 

121.580) violation, as it was a as ruled by the Judge to be a new charge. 

The Judge's Order, directed the Complainant to afford the Respondent due 

process on the new charges. In compliance with that order, the Complainant 

sought the only available methodology which it believed was afforded to it for 

proceeding with the case including that charge, and complying with the Judge's 

Order. Thus in accordance with Section 13.218(a). 14 C.F.R. § 13,218(a) which 

provides that "a party applying for an order or ruling not specifically provided in 

this subpart shall do so by motion," the Complainant filed a request that It be 
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allowed to withdraw its Complaint without prejudice, to allow the Respondent an 

opportunity to respond to the "new" charges. 

The Administrative Law Judge despite not being explicitly authorized In the Rules 

of Practice, fashioned a relief equitable to both parties, since the statute of 

limitations on the "new" charge had not run, that provided Respondent with due 

process. The Judge allowed the Complainant to withdraw its then pending action 

and allowed it the option to re-file it including the "new" charges. 

Given the finding by the Administrative Law Judge that the statute of limitations 

had not run on the "new" charges, the option provided by the Judge, at least 

relative to the "new" charge, was proper; and, despite the language of 14 CFR 

13.215, the only means he believed available to him to equitably address the 

rights of both parties and the public interest in air carrier safety. 

CONCLUSION 

The Complainant hereby requests that the Respondent's motion be denied. 

In the event that the Decisionmaker should determine that Respondent's motion 

be granted, and the Judge's July 24, 2007 order vacated, the Complainant 

requests a declaratory statement as to the Impact of that decision on the 

February 10, 2010, Order Assessing Civil Penalty. Should the FAA 

Decisionmaker determine that the February 10, 2010 Order Assessing Civil 

Penalty is not valid, the Complainant requests that it be permitted to withdraw it's 

July 19, 2007 motion to withdraw it's initial Complaint in this matter, and that the 

Decisionmaker review the Judge's July 3, 2007 initial decision denying the 

Complainant's request to amend its Complaint, and grant that Amendment; or in 

the alternative, grant the Complainant the retroactive right to proceed, on its then 

timely filed allegations relative to the "new" violations of 14 CFR 121.580. 

Respectfully submitted, 

k 

Glenn L. Brown 

Senior Attorney 
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p^ft ^ DMS @I00G/010 

IN THE MATTER OF 

GERALD W. KELLER 

FAA DOCKET NO. CP06GL0007 

(Civil Penalty Action) 

DMS No. FAA-2006-25869 

(FAA CASE NO. 2006-GL-13-0038) 

SERVICE SHEET 

I hereby certify that I have, this date, served the foregoing Complainant's Reply 

In Opposition To Respondent's Motion To Vacate Dated July 30, 2007 As 

Ordered By The FAA Decision Maker January 11, 2011 via US Mail, to the 

following addresses 

Original and 2 copies; 

Federal Aviation Administration 

Wilbur Wright Building—Suite 2W1000 

800 Independence Avenue, SW. 

Washington, DC 20591. 

Attention: Appellate Docket Clerk, AGC-430. 

Copy: 

Gerald W. Keller 

2290 Bascomb Camel Road 

Woodstock, GA 30189 

Dated this 14 day of February 2011 

Y6|ahda Quiles 

Lfitgal Technician 

FAA Great Lakes 
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JUL 0 9 

SERVED JULY 3,J2^^^c^-,^ , J^ 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

GERALD W. KELLER 

FAA DOCKET NO. CP06GL0007 

(Civil Penalty Action) 

DMS NO. FAA-2006-25869 

ADMINISTRATIVE LAW JUDGE'S ORDER DENYING 

MOTION FOR SUMMARY JUDGMENT AND STRIKING 

"AMENDED TO COMPLAINT'? 

On June 5, 2007, the Respondent filed a motion for summary 

judgment, to which the Complainant filed a response, arguing that there are 

disputed issues of material fact that preclude me from granting the motion. 

On June 7, 2007, the Complainant filed a document styled "AMENDED TO 

COMPLAINT," which purported to add to the original complaint a new 

charge, Le., that the Respondent's conduct as described in the original 

complaint constituted a violation of section 121.580 of the Federal Aviation 

Regulations (FAR), which prohibits any person from interfering "with a 

crewmember in the performance of that crewmember's duties aboard an 

aircraft being operated under Part 121 of the FAR. 

On June 20, 2007, the Respondent, who appears pro se in this 

proceeding, filed a pleading purporting to set forth his evidence supporting 

his motion for summary judgment. In addition, the June 20, 2007 pleading 

objected to tlic Complainant's effort to amend the complaint on the ground 

that "[i]t would be unfair to permit additional allegations" so late in the day. 

This order disposes of both of these matters. 
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allegations and turn it into a vehicle for charging the Respondent with 

entirely different violations. In this instance, there is not even the approach 

of a time-bar to excuse tlie Complainant's conduct. If the FAA wishes to 

charge the Respondent with interfering with crewmembers in violation of § 

121.580 of the FAR, there is nothing to prevent it from withdrawing this 

complaint and beginning the proceeding anew with a new Notice of 

Proposed Civil Penalty charging a violation of § 46318, § 121.580, or both. 

For the foregoing reasons -

1. The Respondent's motion for summary judgment is denied; and 

2. The Complainant's "Amended to Complaint" is stricken. 

IT IS SO ORDERED 

Isaac D. Benkin 

Administrative Law Judge 
+ HM^ 01009/010 

02/25/2011 15:48 FAX 2024935142 FAA 

SERVED JULY 24, 2007 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

GERALD W. KXLLER 

FAA DOCKET NO. CP06GL0007 

(Civil Penalty Action) 

DMS NO. FAA-2006-25869 

ADMINISTRATIVE LAW JUDGE'S ORDER GRANTING 

MOTION TO DISMISS COMPLAINT WITHOUT PREJUDICE 

The Federal Aviation Administration has asked me to allow it to 

withdraw its complaint in this proceeding, so that it can re-institute the case, 

charging the Respondent with violation of the different provision of the 

Federal Aviation Regulations. 

Although the Procedural Rules make no explicit reference to the 

withdrawal of a complaint without prejudice (see 14 C.F.R. § 13.215 (if 

agency attorney withdraws complaint, administrative law judge shall dismiss 

proceedings with prejudice)^ the right of an enforcement agency to withdraw 

a complaint without prejudice is inherent in the concept of administrative 

enforcement of a regulatory statute. So long as the applicable statute of 

limitations has not expired, the agency is privileged to withdraw its initial 

enforcement efforts and start anew. 

In this instance, the incident that allegedly gave rise to the complaint 

occurred on December 18, 2005. Consequently, the agency is well within 

the five-year statute of limitations under 28 U.S.C. § 2462 and the two-year 

limitations period in 14 C.F.R § 13.208(d). This means that the FAA can, if 

it chooses, initiate another proceeding against the Respondent. 
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FAA Docket No. CP06GL0007 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Hearing Docket 

Federal Aviation Administratioa 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Att: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Room 2014^ 

ONE COPY 

Gerald W. Keller 

2290 Bascomb Carmel Road 

Woodstock, GA 30189 

TET/- (678)494-6858 

Glenn L. Brown, Attorney 

Federal Aviation Administration 

Regional Counsel (AGL-7) 

2300 East Devon Avenue 

Des Plaines, IL 60018-4696 

TEL: (847)294-7313 

FAX: (847)294-7498 

The Honorable Isaac D. Benkin 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

Room El 2-320 

Washington, DC 20590 

TEL: (202)366-2132 

FAX: (202)366-7536 

' Service Mvas by U.S. Mai\. FOT service in person or by expedited courier, use ihc Following 

address: Hearing Docket, Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur 

WrigiitBuildinfi-Room 2014, Washington, DC 20591, Att: Hearing Docket Clerk, AGC-430.