07/10/2012 15:54 FAX 2024935142 FAA + OMS ~001/024 

U.S. DEPARTMENT .OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION '•"' . 

...... • ,,. ,·\ , .. • .... \CI'oi'.JI "!' ..... )" ' ,, ' ll :•: ~ 'I I , .. ~~oo.•• ~ I I I I 1 

·-· • .. il,,. •lltD •'?:no, 

FEDERAL AVIATION 

ADMTNTSTRA TTON 

Complainant, 

v. 

I ··- '' 

-·· .. 

Docket No. CP10WP0010 

FDMS No. F AI\ 20 I 0-0628 

Hon. Ronnie A. Yoder 

BRIAN WALLAESA 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Respondent ) 

COMPLAINANT'S POST -HEARING BRIEF· 

Pursuant to the May 22, 2012 Order ofthe Chief Administrative Law Judge 

("ALJ") at the close of the hearing in the above-captioned matter, Complainant here:: by 

submits this brief regarding several issues raised by the ALJ. Tr. 155-159. 

At the close of1he hearing, the ALJ stated, among other things, that 

... the Complaint is not a model of clarity, and in particular, the only allegations 

in the Complaint with respect to interference, is that he failed to follow a11 

instruction to sit several times. That is your only case. All ofthis other stuff 

about interactions with Mr. Mollica, and communication:> wilh Mr. Tomchik are 

not directly relevant to that allegation. 

Tr. 156-157. Based on the language quoted above, it appears that the ALJ might be 

asking whether the Complaint was sutllciently clear on the interference charge and 

whether certain evidence (e.g., the deposition.testimony of Passenger Tomchik and the 

hearing testimony from Passenger Mollica, an FBI agent), was relevant to the 

interference allegations. The ALJ also asked Complainant's counsel to: 

... address your briefto the question ofwhat establishes intcrf~rencc. 

1 
07/10/2012 15:54 FAX 2024835142 FAA + OMS 

Tr. 155. The ALJ also asked Complainant to address the penalty calculation, especially 

penalty apportionment, if any, if the ALl finds that Respondent did not violate section 

121.580, but only violated the other two cited sections. Tr. 159. 

1n the discussion below, the FAA Complainant will address: (1) the sufficiency of 

the Complaint regarding the interference charge; (2) the relevance of the evidence about 

Respondent's interactions with crewmembers and other passengers, from the earlier parts 

of the flight, to Respondent's interference with cre\Vlllembers in the later parts of the 

flight; (3) the relevance of FBI agent Mollica's actions as they relate to the interference 

charge; specificaHy, h.is assistance to the crew in getting control of Respondent near the 

end of the flight when Respondent refused to comply with their instructions and the 

illuminated seatbelt sign; (4) other cases that discuss what constitutes "interference" 

under the regulations, and (5) Complainant's position on sanction amount and sanction 

apportionment. 

A. THE COMPLAINANT PLED SUFFICIENT FACTUAL AND LEGAL 

ALLEGATIONS TO SUPPORT A FINDING THAT THE COMPLAINT 

PROVIDED SUFFICIENT NOTIC~: OF THE CHARGES RELATED TO 

INTERFERENCE UND~R 14 C.F.R. SECTION 121.580. 

The Complaint contained, among other allegations, the following: 

4. During the flight, when the seatbelt sign was illuminated, the 

Respondent was asked several times to take his seat, but he refused. 

5. His conduct referenced in the above paragraphs interfered with the 

performance of the crewmembers' duties. · · 

Complaint at 2. Thus, the Complaint contained factual allegations that Respondent's 

interference occulTed, when the seatbelt sign was illuminated. by his refusal to take his 

scat when asked several times to do so. The Complaint also cited and quoted or 

paraphrased the regulations that he was being charged with violating. Id. Thus, read in 

2 

~ 002/024 
15:54 FAX 2024835142 FAA ,. OMS 

context, he knew that he was being charged with being out ofhls seat when the seatbelt 

sign was ill~minated in violation of section 121.317(f). He knew that the Complaint 

charged that while the seat belt sign was illuminated, he was asked several times to take 

his seat but refused, and as a result, Lhal he was charged with violating section 

121.317(k), the safety rule regarding compliance with' crcwmember instructions, when he 

did not comply with the crews' instructions. And, he knew, by reading the entire 

Complaint, in context, that such conduct constituted interference in violation of section 

12l.580. Thus. the level of his interference was exacerbated by him leaving his seat 

when the flight crew had the seat belt signs illuminated (the evidence revealed that this 

was near the end ofihe flight as the aircraft was approaching Las Vegas in turbulent air 

conditions). Additionally, those allegations put Respondent on notice that he refused to 

comply several times. The repeated refusal, during that part of the flight, is itself an 

exacerbating factor and is relev,ant to whether his conduct constituted "'inter terence'' and 

is relevant to the sanction amount Moreover, the Complaint provided that the factual 

allegations sttpported findings that Respondent interfered with the crewmembers- when 

the seat belt sign was illuminated- by refusing to sit several times when asked. Thus, 

these allegations put Respondent on notice that he interfered with the crew, and as a 

result, these allegations satisfy the notice pleading standard. 

1. Precedent and regulation affirm the notice pleading standard. 

To the extent that the ALJ is asking whether paragraphs 4 and 5 ofihe Complaint 

had sufficient specificity to put Respondent on notice of the allegations against him, we 

submit that the Complaint provided adequate notice under the law. The law does not 

require the Government to set 1orth in the Complaint all of the evidence (hal will be 

3 

~ 003/024 
,Vf/ IV(<::Ol2 15:54 FAX 2024835142 FAA + OMS 

adduced at the hearing. Rather) the law requires that a Complaint provide sufficient 

notice so that Respondent can prepare and submit h1s defenses. As the record reflects in 

this case and as we will out1ine below, Respondent understood the nature of the charges 

against him. Respondcn1 made several arguments in the pre-hearing proceedings (both in 

writing and verbally) and during the hearing that demonstrate that he understood the 

charges. Moreover, Respondent's attempt to raise and establish an affinnativc defense, 

i.e., that he allegedly had some type of medical emergency that would excuse his 

cpnduct, is itself revealing about Respondent's understanding of the charges and is 

compelling evidence against him. In essence) the nature of Respondent's affirmative 

defense must be an implicit recognition by him that had anyone else done what he did 

aboard the aircraft> that person - absent some type of valid allirmative defense - would be 

1ound to have violated the safety rules. 

The FAA Rules of Practice in Civil Penalty Proceedings set forth the notice 

pleading standard, requiring that "[a] Complaint shalt set fonh the facts alleged, any ,, 

regulation allegedly violated by the respondent, and the proposed civil penalty in 

suflicient detail to provide notice of any factual or legal allegation and proposed civil 

penaliy.'' 1 14 C.F.R. § 13.208(c). 

1 Federal Rule of Civil Procedure 8(a)(2) also sels forth the notice pleading standard 

requiring only that a pleading contain a "short and plain statement of the claim showing 

that the pleader is entitled to relief ... "Fed. R. Civ. P. 8(a)(2). Although the Federal 

Rules are n()t controlling in an administrative proceeding, the U.S. Supreme Court has 

reaffirmed the notice pleading standard in the Federal Rules. Swierkiewicz v. Sorema, 

534 U.S. 506, 512 (2002) ; see Bell Atlantic Corn. v. Twombly, 550 U.S. 544, 554-57. 

(2007). The Court also noted that, "[tlhe provisions for discovery are so flexible and the 

provisions for pretrial procedure and summary judgment so effective, that auempted 

surprise in federal practice is aborted very easily, synthetic issues detected, and the 

gravamen of the dispute brought frankly into the open for the inspection of the court.'' 

4 

~ 004/024 
Vl/10/2012 15:54 FAX 2024935142 FAA 

-> OMS 

In fact, the ALl, in a previous decision, affirmed and acknowledged the notice 

pleading standard .• quoting United States Supreme Court and United States Court of 

Appeals for the D.C. Circuit precedent that in an administrative proceeding, a Complaint 

"is sufficient if the respondent 'understood the issue' and 'was atl'orded full opportunity' . 

to justify its conduct during the course of the litigation." In re Brendan Airways, FAA 

Docket No. CP09EA0007 at *3 (June 7, 2010) (quoting Aloha Airlines v. Civil 

Aeronautics Bd., 598 F2d 250, 262 (O.C. Cir. 1979) (quoting NLRB v. Mackey Radio & 

Tel. Co., 304 U.S. 333, 350 (1938)); accorq Flying Food Group v. NLRB, 471 P.3d 178, 

183 (D.C. Cir. 2006) (finding that "even ifthere had been some ambiguity in the 

Complaint, that wou1d not have been grounds for dismissal" so long as a petitioner 

'"understood the issue' and 'was afforded full opportunity' to justify its conduct during 

the course of the litigation"'). 

Mackey Radio, quoted and cited by the ALJ, involved a labor dispute in which 

two Complaints were filed. According to the respondent, the first Complaint alleged that 

Mackey discriminated against employees by discharging them, while the second 

Complaint alleged that Mackey discriminated by refusing to re-employ the employees. 

Mackey Radio, 304 U.S. at 349. The respondent then alleged that when the Board made 

its findings, it r~verted to the positjon set forth in the first complaint and by doing so 

·"found [the respondent] guilty of an unfair labor practice which was not within the issues 

upon which the case was tried." ld. However, the United States Supreme Court found 

that "[al review of the record shows that at no time during the hearings was there any 

misunderstanding as to what was lhe basis of the Board's Complaint" Id. at 350. The 

Swierkicwiciz, 534 U.S. at 512-13. 

5 

~ 005/024 
vu1uno12 15:55 FAX 2024935142 FAA ,. OMS 

Court then found that ''[wJhilc the respondenl was entitled to know the basis ·of the 

Complaint against it, and to explain its conduct, in an e1TorL to meet that Complaint, we 

find 1iom the record that it understood the issue and was afforded full opportunity to 

justify the action of its oilicers as innocent rather than discriminatory." Id. 

In Aloha Airlines, the D.C. Circuit, aller quoting the United States Supreme 

Court's "understood the issue" and "afforded full opportunity"_ language from 

Mackey Radio, detennined that, "'the question on review is not the adequacy of the ... 

pleading but is the fairness of the whole procedure."' Aloha Airlines, 598 F.2d at 262 

(quoting 2 K. Davis, Administrative Law Treatise, s 8.04 at 525 (1958)). 

Thus, the applicable inqujry in this case, and in an administrative hearing in 

general, is whether the Complaint put Respondent on sufficient notice so that he 

underslood the issue and was afforded full opportunity to justify his conduct. 

2. Respondent understood the interference issue and, both before and 

during the hearing, was afforded full opportunity to argue that his 

conduct did not violate the regulations or that if his conduct did -violate 

the regulations, his eooduct should be ex<lused because of his alleged 

medical emergency. 

ALler Complainant put Respondent on notice that he violated 14 C.F.R.. section 

121.580, Respondent cannot credibly claim that he did not understand the nature of the 

allegations nor was a1Iorded a full opponunity to argue that the Complainant did not 

prov<:: the allegations or that even if pro'Vcd, that his alleged medical emergency should 

excuse his conduct. First, Respondent participated in three pre-hearing teleconferences 

with the ALJ and counsel for Complainant During the first pre-hearing conference, the 

ALJ acknowledged a submission from R~spondent in which Respondent sLated that he 

requested assistance from crewmembers and did not interfere with the pe1formance of 

6 

~ill 008/024 
vrt IV/~012 15:55 FAX 2024935142 FAA -+ OMS 

their duties. Pre·hearing conference Tr. 53 (Oct. 18, 2011). Here, Respondent did not 

tell the ALJ or Complainant that he did not understand the charges in the Complaint, as 

he could have if that had really been the case. Rather, Respondent denied that he 

intcdcred with crewmember duties. Jd. He did no1 question the basis for or seek 

clarification of the interference allegations. This demonstrates that he "understood the 

issue." 

Second, Respondent, both ora!ly during Lhe pre-hearing conference and in writing, 

in his Response to Complainant's "Memorandum on Sanction,'' ("pre·trial brief') 

vigorously disputed the FAA's authority in general to assess a civil penalty against a 

passenger on an aircraft. Pre·hearing conference Tr. 40-47 (Mar. 2, 2012). This 

demonstrates Respondent's capacity and wherewithal to question the basis for the 

interference allegations. In other words, Respondent,s arguments thalthe FAA lacked 

the legal authority to assess a civil penalty against a passenger is compelling evidence 

that Respondent understood the interference charge. One cannot make a reasonable or 

credible claim that there is no legal authority to penalize passengers for interference, 

unless one subjectively understands the nature and gravamen of the Complaint. In none 

of his documents and in none of his verbal arguments did he claim any ambiguity in the 

Complaint or any confusion in his mind about the nature of the charges. Respondent 

understood these allegations. 

Significantly, during the hearing, while Respondent never claimed any 

uncertainly about the nature of the charges against him, his affirmative defense itself is 

compelling proof of his recognition about the c1arity of the Complaint and his 

understanding of the compelling evidence that supports the al1egations in the Complaint. 

7 

Ia} 007/024 
07/10/2012 15:55 FAX 2024935142 FAA ~ OMS 

Respondent testified that his multiple failures to comply with crewmember instructions to 

sit down, as set forth in the Complaint, resulted from a medical emergency requiring him 

to leave hjs seat when the ~eat-belt sign was on to "seek[ ] help from the person in 

charge." Tr. 144. While his medical emergency affirmative defense could be viewed as 

an attempt to excuse his violations of sections 121.580, I21.317(t) and 121.317(k), the 

questions he asked Complainant's witnesses on cross-examination demonstrate that he 

understood (and wasn>t surprised) by the evidence against him in that he had prepared 

those cross examination questions lo support his legal "excuse" theory that he had a 

medical emergency.

2 Tr. 61-65; 92-94; 131-132. Thus, it is apparent from the transcript 

that Respondent understood the interference issue, and that he sought to excuse his 

conduct by offering an affirmative defense rather than disputing the basis fM the 

interference violation. In this regard, Respondent "was afforded full opportunity to 

justify [his) conduct during the course of the litigation" and in fact, sought to do so. In re 

Brendan Airways, FAA Docket No. CP09EA0007 at *3. 

ln sum> the record before the ALJ shows that Complainant put Respondent on 

· notice of the all of the charges, including the interference charge, that he understood the 

issues and was afforded full opportunity to justify his conduct. Thus, precedent, 

regulation, and the record in this case support a finding that Complainant's C0mplaint 

contained sufficient notice of the allegations against the Respondent. 

2 In any event, Respondent's claimed "'medkal emergency'' does not excuse his conduct. 

See fAA v. Schwager, FAA Docket No. CP06SW0010 at *4 (May 23, 2008). 

8 

~ 008/024 
vrt IIJ/2012 15:55 FAX 2024935142 FAA 

------------------- -> OMS 

A. RESPONDENT'S CONDUCT AND INTERACTIONS WITH 

CREWMEMBERS AND PASSENGERS DURING THE ENTIRE 

FLIGHT EXIDBIT THE ESCALATING NATURE OF HIS 

INTERFERENCE, THEREBY UNDERMINING ANY OF HIS 

CLAIMS OR DEFENSES THAT HE HAD SOME TYPE OF 

MEDICAL "INABILITY TO UNDERSTAND" OR "INABILITY TO 

COMPLV91 WITH THE CREWS' INSTRUCTIONS AND 

SUPPORTING IDS VIOLATIONS OF SECTIONS 121.317(1), 

121.317(k), and 121.580. 

Paragraphs 4 and 5 of the Complaint put Respondent on notice that he interfered 

with crewmembers when he was asked several times but refused to take his scat while the 

seat belt sign was on. WiLness testimony demonstrates that Respondent's repeated 

failures to comply with crewmembcr instructions escalated from an annoyance to an 

interference with crewmcmber duties. In this regard, Complainant respectfully disagrees 

with the ALJ' s assertion that '[a]ll this stuff about interaction with Mr. Mollica, and 

communications with Ms. Tomchik are riofdirectly relevant to that al,Jegation." Tr. 156. 

1. Respondent's conduct preceding the final45 minutes of the flight is 

directly relevant to whether Respondent should be found liable for 

violating sections 121.317(f), l21.317(k), and 121.580 as cited in the 

Complaint. 

Complainant is not charging Respondent with the three violations lor his conduct 

preceding the final45 minutes of the flight.l However, that conduct is relevant to 

establishing the motive for his noncompliance during the !inal4S minutes, the escalating 

nature of his conduct and that he both ui:lderstood and was capable of complying with 

crewmember instructions but chose to disregard the crew's instructions in the later parts 

of the tli ght. 

3 Testimony at the hearing established that approximately 45 minul~s before the aircraft 

landed, the flightcrcw illuminated the fasten-seatbclt sign because the aircraft was 

heading into turbulent air. In this brief, we will use this 45-minute period as the time 

frame within which Respondent violated the regulation cited in the Complaint. 

9 

ldl 009/02.1 
07/10/2012 15:55 FAX 2024935142 FAA + OMS 

Ms. Tomchik's deposition and Respondent's written submission, "Testimony of 

Respondent" make clear that Ms. Tomchik was the recipient of Respondent's unwanted 

verbal and physical attention. Exhibit C-2, page 11-16; see Exhibit C-4. ALler 

Ms. Tomchik initially reported to Flight Attendant Moorman her attempt to e~cape 

Respondent's advances, Respondent complied with Ms. Moorman's instructions to go to 

the back of the plane to speak with the flight attendants. Tr. 2S. Afler Respondent 

retumed to his seat in the third row, he again attempted to speak with Ms. Tomchik. 

Tr. 33~3.4. Ms. Moorman interceded, and again asked him to return to the back of the 

aircraft. Respondent at first refused, then complied reluctantly. Tr. 36-37. After the 

night attendants reseated Respondent in Row 18, he attempted on several occasions to 

walk to the front of the aircraft. Tr. 41-42; 77. 78. Each time Flight Attendant Dwnond 

told him to ~it down prior to the t1nal 45 minutes ofthe flight, Re!)pondent complied 

reluctantly. Tr. 77-78. While this testimony clearly establishes that Respondent was 

resistant and slow to respond to inst111ctions to remain away from Ms. T omchik or to 

remain in his seat with his scat bell fastened prior to the 11nal45 minutes of the flight, this 

was not a situation where Respondent did not understand or was incapable of controlling 

himsdf. Tr. 85, lines 10-13; 142~43. The evidence regarding the events preceding the 

lasl 45 minutes ofthe flight establishes that Respondent. understood and was capable of 

complying with flight attendant instructions to remain seated and to refrain from 

contacting Ms. Tomchik. 

Thus1 for example, Respondent cannot credibly claim that some type of medical 

condition, for which he provided no documentation in the record, prevented him from 

compreh~nding instructions when the evidence demonstrates that: (1) he understood 

10 

@010/024 
07/10/2012 15:55 FAX 2024935142 FAA + OMS 

when he was initially told to come to the rear of the aircraft to discuss the matter; (2) he 

understood when the crew required him to be reseatcd near the back of the aircraft as a 

consequence of his attempt to contact Ms. Tomchik, against crewmember instructions, 

where she had reseated herself: and (3) he understood when Mr. Dmnond told him to 

return to his seat in Row 18 after he walked past his seat toward the front of the aircrafi 

after exiting the aft lavatory_ 

The evidence of Respondent's conduct prior to the final.45 minutes of the flight 

tlrmly establishes his motives and intentions toward the end of the Hight. Specifically, 

when Respondent arose from his seat in the back of the plane and walked "with purpose" 

to the front of the plane in the final 45 minutes ofthe flight, this was not a situation where 

the Respondent was acting aimlessly or where he Jacked lucidity or purpose. Tr. 79-80. 

He had the goal in mind to communicate with Ms. Tomchik again. T.r. 80~81, 87, 109-

110, 142. His goal happened to be at odds with Ms. Tomchik's preferences and most 

importantly, his goal was at odds with the cabin crew's goal of preventing conflicts 

among the passengers that had the potential of erupting into physical altercations. 

Tr. 117, 121; Exhibit C-2, page 18, lines 22·25. Respondent decided that his goals were 

more important than adhering to the instructions he received from the crew. See Tr. 147~ 

148. That evidence establishes that his goals were at odds with the crew's safety goals. 

And, that evidence establishes that in the 45 minutes ofthe flight, he made a knowing 

choice to disregard the crew's instructions to sit down and fasten his seat belt when the 

sign was illuminated and by failing to do so, interfered with the crew's duties.4 

4 Because the evidence established that the flight deck crew caused the fasten seatbelt 

sign to be illuminated, we submit that the flight crew was communicating its instructions 

to the passengers to fasten their seatbelts. Tr. 40-42; 80, 86. Respondent's actions not 

11 

~011/024 
07/10/2012 15:55 FAX 2024935142 FAA + OMS 

\. 

The most important aspect of the evidence regarding Respondent's conduct during 

the flight in the time preceding the last45 minutes of the flight was that it demonstrates 

that the instructions provided to him from the crew during the final45 minutes ofihe 

flight were not a surprise. The instructions were consistent with the earilcr instructions 

he had received to stay away from Ms. Tomchik, to remain al the rear of the aircraft, and 

to remaln in his seat. This is not a situation where Respondent received special attention 

and special instructions from the crew for the first time during the last 45 minutes of rhe 

flight. Instead, this was a situation where Respondent had been given many instructions 

to stay away from Ms. Tomchik and where he had earlier slowly and reluctantly 

complied and where he made attempts to contact her anyway. 

Respondent's conduct preceding the lasl4S minutes of the flight is relevant to 

establishing the escalating nature of the situation. What started as attempts by the crew to 

diffuse the situation by separating Respondent from Ms. Tomchik, led to having to 

repeatedly monitor Respondent because he made a few attempts to contact Ms. Tomchik 

again, that in tum led to a confrontation outside the cockpit door, that in turn led to a 

standoll" with the crew wherein Respondent made it clear that he would not comply and 

that finally led to the crew seeking the assistance of the anned FBI agent who also tried 

several times to di1Iuse the situation and emphasized the need for Respondent to comply 

with Lhe instructions from the cabin crew. In fact, Ms. Moorman had briefed the captain 

ab()ut Respondent's conduct, including his conduct before the final 45 minutes of the 

only failed to comply with the verbal instructions directly and specifically addressed to 

him trom the flight attendants, but his actions also failed to comply with the instructions 

of the captain- which were communicated to all the passengers via the illuminated sign. 

Thus, Respondent's action during the Last parts of that flight, in the circum.:itances of the 

case, not only constitute violations ofthe cited subsections of sections 121.317, but they 

also constitute interference in violation of section 121.580. 

12 

~012/024 
07/10/2012 15:58 FAX 2024935142 FAA "' OMS 

Hight. Tr. 43. That information was rcJcvanl to the captain's assessment of the situation 

and resulted in him telling the flight attendant to seek assistance from the FBI agent and 

resulted in him making a radio call to seek to have law enforcement personnel at the gate 

when the aircraft arrived in Las Vegas. Tr. 51. Thus, that inform.l:\1ion about the 

escalating nature of Respondents poor behavior- from reluctant and slow compliance, to 

attempts to quickly approacl1 Ms. Tomchik's area before the crew intervened, to an 

absolute refusal to comply with the crcwmember's instructions during the last 45 minutes 

of tho Llight- is relevant to the level of his culpability fM his noncompliant conduct 

toward the end of the flight and was relevant in t~rms of how his conduct not only 

interfered with the crew's duties but was also relevaut to the level of his interference with 

the pilots' safety duties. 

l. The evidence at hearing supports aJlegations in the Complaint that 

Respondent interfered with crewmembcr duties and why FBI Agent 

Mollica's actions in support of the cabin crew are relevant and 

demonstrate another aspect of how Respondent interfer-ed with the 

crewmembers. 

· The Administrator's decision in FAA v. Stout, FAA Order No. 98-12 

(June 16, 1998) sets forth specific crewmember duties, including: assuring a safe and 

orderly environmcn1, attending to other passengers, and retaining control as a · 

crewmember. ld .. at *4. The Administrator also found that a captain's decision "whether 

to make an unscheduled landing or arrange for security to meet the plane'~ constitutes 

interference with the captain's normal duties. ld. at *5. In Stout, the ALl rejected 

:Mr. Stout's argument that he did not threaten the safety of the aircraft because he 

intended to fasten his seatbelt when he felt it was necessary, finding that it «completely 

ignored the importance of maintaining a safe and orderly environment in the cabin.~' ld. 

13 

@013/024 
07/10/2012 15:56 FAX 2024835142 FAA ------------------·· -> OMS 

The discussion of crewmembcr duties in Stout and how that respondent interfered with 

those duties supports finding that Respondent interfered with the duties of the 

crewmembers in the present case, as discussed below. 

a. Maintainint= a safe and orderly en-vironment in Che cabin. 

Mr. Dumond Lestified one of his safety duties as a flight attendant was to maintain 

an orderly cabin environment. Tr. 91. When asked to what extent passengers who stand 

when the seat belt sign is on inter1ere with that duty, he testified that it would be 

detrimental and prohibit the flight attendants irom perfomting their duties. Tr. 91. 

The evidence showed that in the final 45 minutes, Respondent arose from his seal 

when the captain had illuminated the seat belt sign due to turbulence, and that the sign 

remained on until landing. Tr. 40-42, 86. Contrary to flight attendant instructions and 

contrary to the requirement to comply with the illuminated seatbelt sign, Respondent 

refused to sit, even after FBI Agent Mollica handcuffed him. Tr. 113-I.S. Respondent's 

failure to comply with instructions forced Ms. Moorman to act outside of the ordinary 

duties of a Hight attendant and thus distracted her from her normal duties. Specifically. 

Ms. Moom1an had to move passengers seated in Row 3 to. clear that.row of seats so that 

Agent Mollica and Respondent could sit tor the remainder of the flight, and at a time 

when the captain had illuminated the fasten seat-belt sign as the aircraft descended 

toward I ,as V cgas, in turbulence no less. Tr. 49. Not only was this outside tht.l ordinary 

duties for a flight attendant, but also it directly interfered with her normal duty to 

maintain a safe and orderly cabin environment by assuring that all passengers remained 

seated with their seatbelts fastened while the seat belt sign was illuminated. 

14 

Ia] 014/024 . 
07/10/2012 15:58 FAX 2024935142 FAA -> OMS 

b. Attending to other passengers 

During the final45 minutes of the tlight, Respondent's failure to sit down 

required Ms. Moorman and Mr. Dumond to direct their full attention to Respondent while 

in the forward "clear zone" of the aircraft. Because they are assigned to work a particular 

section o.1: the aircraft, the necessity of directing their full attention to Respondent 

distracted them from, and interfered with, their duties both to attend to other passengers 

seated in their assigned sections of the aircra1l and generally to observe the cabin, in 

accordance with their training, for any suspicious activity. Tr. 55-56 

c. Retaining control as a crewmernber 

Although an argument might be made. that the FBI Agent Mollica, in the 

circumstances of this case, became a crewmembcr, we will not make that argument in· 

this case. Thus, Respondent is not charged with falling to comply with the instructions of 

the FBI agent or that his conduct interfered with the duties of the FBI agenl. However, 

the crew sought the assistance of Agent Mollica when Respondent moved quickly up the 

aisle, past Ms. Tomchik's seat in row two, toward the cockpit, and when it became 

apparent to flight crewmembers that Respondt:mt was not going to return to his seat and 

was not going to comply with the crew's other instructions. Tr. 43, 81. Despite the flight 

attendants' best efforts, Respondent interfered with the flight attendants' duty lo retain 

control as crcwrnembers. As a result, the Jlight attendants found it necessary to call on 

Agent Mollica to assist them in getting forced physical control over the Respondent. 

Tr. 43, 81. Moreover, when Respondent, in handcuffs and being led to a row of seats, 

bucked and pushed back against Agent Mollica, those actions were co111rary to the 

15 

~015/024 
07/10/2012 15:58 FAX 2024935142 FAA + OMS 

instructions from the crew that he proceed to the row of seats that Ms. Moorman made 

available for him and the FBI agent 

d. Arranging for security to meet the aircraft 

FAA Inspector Driscoll testified that phone calls between the flight attendants and 

the pilots can interH~re with the pilot's duties by distracting the pilots from, among other 

things, hearing radio calls. Tr. 130. Ms. Moonnan testified that she spoke with the 

captain over the phone regarding Respondent, and the captain told her that he would call 

for law enforcement to meet the aircraft at the gate. Tr. 51. Law enforcement was in 

fact waiting in thejetway when the plane arrived in Las Vegas. Tr. 51. Respondent's 

conduct that resulted in the flight crew calling for Jaw enforcement interfered with their 

nonnal duties of monitoring systems and lislening for radio calls. See id. at *5. 

e. The totality of the circumstances 

ln the appropriate case, Complainant could charge a passenger with interfering 

with the duties of a crewmember in one instance of delayed reluctant compliance. In this 

case, Rcspondenl was on notice of the crew's instructions to him to stay away n-om 

· Ms .. Tomchik. Despite those instructions earlier in the flight, he started a pattern of 

reluctant compliance followed by attempts to stealthily or quickly maneuver into 

Ms. Tomchik's proximity, then reluctantly returning to his seat when caught. He was not 

charged with violating the rules for those instances of noncompliance with cre'Wlllemher 

instructions. But that evidence is relevant to the charges at hand because lt uncquivo·cally 

establishes that he was given many opportunitles to comply and that he understood the 

instructions and was able albeit reluctantly· to comply. 

16 

141018/024 
a7/10/2012 15:58 FAX 2024835142 FAA -o OMS 

At the end of the tlight, with turbulent air conditions, with the captain's action to 

illuminate the seal belt sign, and with flight attendants ordering Respondent to return to 

the his seat at the rear of the aircraft, he ignored those instructions and refused all 

attempts by the crt~w and the FDI agent, to have him peacefully return to his scat 

unrestrained. His noncompliance resulted in the distraction of crewmembers. For· 

example; the flight attendants had to focus on him instead of generally monitoring 

everyone, and the pilot was distracted from his normal cockpit duties, including 

monitoring systems and seeing and avoiding other aircraft, in order to contact law 

enforcement to meet the aircraft. Moreover, Respondent's noncompliance resulted in 

other passengers being jeopardized. For example, Respondent's pushing back against 

Agent Mollica while the agent escorted the handcuffed Rcspond<::nl back to a row in the 

passenger cabin jeopardized his saf'tlty as well as the safety of other passengers ln the 

area. One flight attendant observed Respondent's pushing actions - and that in and of 

itself was an unsafe and violative interference with normal crewmember duties. 

Furthermore, Respondent's noncompliance jeopardized the flight attendants, who but for 

his noncompliance, would have been in tht~ir seat wit~! seatbelts!harnesses fastened during 

the aircraft's flight into turbulence. Respondent's noncompliance also resulted in the 

flight attendants having to move Ms. Tomchik.and others from the front of the aircratl io 

the rear of the aircraft during the ;,;tircrd.ft' s flight in turbulent ~ir conditions. Moving 

passengers out of their seats to the rear of the aircraft during turbulence in order to free a 

row of seats at the front of the aircraft for the handcuffed Respondent and the FBT agent 

interfered with the crewmembers normal duties of making sure that the passengers 

remained seated during such flight co'nditions. 

17 
07/10/2012 15:58 FAX 2024935142 FAA -t OMS 

B. DISCUSSION OF SANCTION AMOUNT FOR EACH OF THE THREE 

CITED VIOLATIONS. 

We believe that the evidence establishes that Respondent violated section 121.580 

and we submit that the full $5,500 civil penalty amount is warranted not only for the 

section 121.580 violation but11lsv for the section 121.317(f) and l21.3l7(k) violations 

under the totality ofthc circumstances, as discussed in Complainant's pre-trial brief. 

The evidence demonstrates that the situation on the aircraft escalated over the 

course of the flight from an annoyance to interference. The cabin crew was very patient. 

·The FBI agent was very patient with Respondent. Respondent put his wants over the 

safety interests or others in that aircraft, contrary to three FAA safety regulations. It is 

relevant, when assessing sanction to realize that the crewfs response to Respondent was 

not heavy-handed. The crew attempted several times to diffuse the siLuation and the crew 

had some measure of success with the reluctant Respondent. It is also relevant in 

assessing sanction that the crew had to talk with Respondent several times regarding his 

conduct and the need to comply with their instructions. Although the three charges cited 

relate to Respondent's conduct during the last 45 minutes of the flight. the evidence 

presented about his conduct and the crew's interactions with him during earlier portions 

of the flight is relevant to liability as well as the sanction amount: His conduct during the 

final45 minutes ofthe flight warrants the imposition of the fidl sanction amount of 

$5,500. His actions and the actions of the crewmembers during the time preceding the 

last 45 minutes of the t1ight are relevant to how egregious the violations were and how 

culpable the Respondent is for his unsafe conduct. 

In its pre-trial brief, Complainant outlined the original Notice of Proposed Civil 

Penalty as well as the Amended Notice of Proposed Civil Penalty. As originally written, 

18 

@018/024 
07/10/2012 15:58 FAX 2024835142 FAA + DMS 

the Notice of Proposed Civil Penalty cited section 121.580 (interference) as the 

regulation violated by the Respondent and rhat notice contained a proposed civil penalty 

amount of$5,500. Before the Respondent had his informal conference with FAA 

attorneys, the FAA Regional Cow1sel in Los Angeles amended the notice to add two 

additional regulations, but did not change the proposed civil penalty amount of $5,500. 

Thus, in the pre-trial brief, Complainant outlined how the section 121.580 charge, by 

itself, warranted a $5,500 civil penalty under the Administrator's sanction guidance as 

well as under case law. By asserting that the section 121.580 violation by itself 

warranted the $5,500 civil penalty amount, we did not intend to suggest thai shou)d the 

ALJ or the FAA dccisionmaker not tind established the section 121.580 charge, then no 

civil penalty would be warranted for the other two cited regulations, nor did we assert 

that the penalty level is based entirely on the interference violation as the ALJ asserts. 

Tr. 159. To the contrary, we stated that the $5,500 civil penalty was based on the 

interference violation in the Notice of Proposed Civil Penalty (the only regulation cited in 

that original Notice of Proposed Civil Penalty), but indicated that after the violations for 

sections 12L317(f) and 121.317(k) were added to the Amended Notice of Proposed Civil 

Penalty, that the totality of the circumstances warranted a $5,500 civil penalty.5 

Complainant's pre-trial brief then reviewed case law pertaining to violations of sections 

121.317(f), 12l.317(k), and 121.580, and the associaied civil penalties in support of its 

argument that all of the circumstances, including sanction guidance, case law, and the 

facts of the case warranted a total civil penalty of $5,500 for all of the violations. 

s The ALJ stated that two of the violations (i.e .• sections 121.317(.f) and 121.317(k) . 

"didn't exist at the time you filed the Complaint." Tr. 159 a\ lines 11-12. However, both 

the Amended Notice of Proposed Civil Penalty and the subsequently-issued Complaint, 

contained all three violations. 

19 

~018/024 
07/10/2012 15:57 FAX 2024835142 FAA -o OMS 

The totality of the circumstances approach is consistent with case law. In Stout, 

the ALJ reduced the civil penalty from $3,000 to $1,700. Ori review, the Administrator 

upheld the reduction but stated that "[.tlhis decision does not affirm the particular penalty 

breakdown specified by the law judge. It indicates only that $1,700 is an appropriate 

penalty under the totality of the circums1ances.'' Stout, FAA Order No. 9&-12 at *7 n9; 

~FAA v.Digenova, FAA Docket No. GP07WP0007 at *3 (June 25, 2008); .FAA v. 

Bergstrom, FAA Docket No. CP04WP0020 at *3 (Apri122, 2005). Nonetheless, if the 

ALJ or the FAA decision.maker rules that Respondent did not violate section 121.580, but 

that he did violate one or both of the other regulations cited in the Complaint, then 

Complainant respectfully submits that the following civil penalty amounts would be 

warranted in view of case law and the Administrator's sanction guidance. 

Under FAA Order 2150.3B, "Failure to fasten seat belt while seat belt sign is 

lighted" ordinarily warrants a civil penalty in the minimum to moderate range.6 

FAA Order 2150.3B, App'x B-29, Fig. B-3- q (4). for violations committed by an 

individual not serving in the capacity of an airman under 49 U.S.C. § 46301 (a)(5)(A)> the 

sanction gt1idance specifies a minimum ran~e of $550-$2,199. Id. at App' x B-8. The 

moderate range is $2,200-$4,399. Id. The midpoint of the moderate to maximum range 

is $2,475. Under agency sanction guidance, the starting point for a violation of section 

121.317(£) without considering aggravating and mitigating circumstances is $2,475. 

FAA Sanction guidance does not specify a sanction range for a violation of 

section 121.317(k). However. because a violation of 121.317(k) rnay result from a 

6 Agency sanction guidance in FAA Order 2150.38 is publicly available at: . . 

.http://www.faa.gov/regulations_policies/ordcrs_notices/index.cfm/go/document.mformatt 

on/documcntid/1 7213 

20 

~ 020/024 
07/10!2012 15:57 FAX 2024935142 FAA + OMS 

violation of section 12l.317(f), the closest analogous provision in the sanction guidance 

for a violation of section 121.3l7(k) is "Failure to fasten seat belt while seat belt sign is 

lighted," as discussed in the preceding paragraph. Thus, without considering aggravating 

~r mitigating circumstances, $2,475 is an appropriate sanction for a violation of 

section 121.317(k). 

ln assessing a civil penalty for Respondent's violations of section 121.317(f) and 

121 J 17(k), case law also should be considered under the totality of the circumstances. 

In this regard, Complainant refers the ALJ to FAA v. Flores, FAA Docket No. 

CP08WP009 (Aug. 20, 2009), discussed on pages 6-8 of Complainant's pre-trial brief. 

Although this case was not reviewed by the Administrator and thus is not binding 

precedent, the sanction analysis by the ALJ is, nonetheless, instructive.. Pre-hearing 

conference Tr. 37 (lines·19-22)-38 (lines 1·2) (Mar. 2, 2012). 

The ALJ in Flores affirmed the FAA's proposed civil penalty of$3,300. The 

respondent in Flores violated 14 C.P.R. §§ 121.317(f), 121.317(1<), and 121.306 when she 

failed to turn off her phone, screamed at the flight attendant, and failed to remain seated 

while the scat belt sign was illuminated a!ter repeated commands by the Hight attendant 

to remain seated. Flores, FAA Docket No. CP08WP009 at *2. In both Flores and the . 

present ca!\e, the respondents repeatedly failed to take their seats as instructed by the 

flight altendants and as specified by the illuminated seat belt signs while the aircraft was 

airborne. Thus, considering fAA sanction guidance and case law, ifthe ALJ determines 

that Respondent did not violate section 121.580, Complainant subtnits that a civil penalty 

of$1,500 for each violation of section 121.317(f) and 121.317(k) is appropriate, for a 

total civil penally of $3,000 for both of these violations. 

21 

141021/024 
07/10/2012 15:57 FAX 2024935142 FAA + OMS 

In this particular case, one could view the violations of section 121.317(f) and 

121.317(k) as lesser included offenses of, or subsumed within, the section 121.580 

charge. Although not every interference case will necessarily include a situation where 

respondent disobeys the instructions on the fasten seatbelt sign or those given by the 

crew, in this case the bad conduct that constituted the interference was Respondent's 

failure to follow the crew's instructions and his refusal to comply with the illuminated 

seatbelt sign. Respondent's noncompliance resulted. in several example~ of how his 

actions interfered with the crewmembers' normal duties. That interference endangered 

the crcwmembers, other passengers as well as Respondent. Therefore, we believe that if 

the ALJ finds that the respondent violated the interference regulation, then the ALJ n1Ust 

find that Respondent violated the crt:wmember instruction regulation and the fasten 

scatbelt regulation. We submit that if the ALJ finds that the Complainant established that 

Respondent violated section 121.580, but somehow finds that, for example, Respondent 

did not violate the requirement to comply with the illuminated fasten seatbelt sign -.·· that 

Respondent should nonetheless be required lo pay the full $5,500 civil penalty. 

CONCLUSION 

For all of the foregoing reasons, Complainant respectfully requests that the ALJ 

affinn the three violations alleged in ilie Complaint and the $5,500 propf>sed civil 

penalty. However, ifthc ALJ detcrmines.that Respondent did not violate section 

121.5 80, Complainant respectfully requests that the ALJ assess a civil penalty of $3,000 

for Respondent's violations of sections l21.317(f) and 121.317(k). 

22 

~ 022/024 
07/10/2012 15:57 FAX 2024935142 FAA 

Dated: July 2, 20 I 2 

23 

? OMS 

Respectfully submilled, 

Peter J. Lynch 

Assistant Chief Counsel 

Enforcement Division, AGC-300 

By:&!¥ 

Attomey, Enforcement 

Division/AGC-300 

Office of the Chief Counsel 

800 Independence Ave., S. W. 

Washin~:rton, D.C. 20591 

Telephone: (202) 267·9958 

Facsimile: (202) 267-5106 

@ 023/024 
07/10/2012 15:57 FAX 2024835142 FAA + OMS 

CERTIFICATE OF SERVICE 

I hereby c~nify that 1 have sent on this date by Federal Express, a copy ofthe 

foregoing Complainant's Post Hearing Brief in FAA v_ Brian Wallaesa, FAA Docket 

No. CPIOWPOOlO, FDMS No. FAA-2010-0628, addressed to: 

Hon. Ronnie A. Y odcr 

Chief Administrative Law Judge 

Ollice of Hearings, M-20, Room EI2-320 

1200 New Jersey Avenue, SE 

Washington, DC, 20590 

In addition, I hereby certify that on this date J sent the foregoing document by 

certified mail-relum receipt requested, addressed to: 

Brian Wallaesa 

11272 Wortham Crest Circle 

Manassas, VA 20109 

(One copy) 

Federal Aviation Administration (Original and one copy) 

800 Independence Ave. S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite2W1 000 

Datii'--"!lu~-""o-12 __ _ 

24 

~ 024/024