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 

### ADMTNTSTRATTON Complainant, 

### v. I ··- '' -·· .. DocketNo. CP10WP0010 FDMS No. FAI\ 20I0-0628 Hon. Ronnie A. Yoder BRIAN WALLAESA ) ) ) ) ) ) ) ) ) ) ) Respondent
COMPLAINANT'S POST-HEARING BRIEF· Pursuant to the May 

### 22, 2012 Order ofthe ChiefAdministrative Law Judge ("ALJ") at the close ofthe hearing inthe above-captioned matter, Complainant here::by submits this briefregarding several issues raised by the ALJ. Tr. 155-159. Atthe close of1hehearing, the ALJ stated, among other things, that

... the Complaint is not 

### a model ofclarity, and in particular, the only allegations inthe Complaintwithrespect to interference, is thathe 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 onthe language quoted above, it 

### appears that the ALJmight be asking whetherthe Complaint was sutllcientlyclearon the interference charge and whether

### certain evidence (e.g., the deposition.testimony ofPassenger 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 ofwhatestablishes**intcrf~rencc.**



### 107/10/2012 15:54 FAX 2024835142 FAA + OMS

Tr. 155. The ALJ also asked Complainantto address the penalty calculation, especially penalty apportionment, if

### any, ifthe 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 ofthe evidence about Respondent's interactions with crewmembers and otherpassengers, from the earlierparts ofthe flight, to Respondent's interference with cre\Vlllembers in the laterparts ofthe flight; (3) the relevance ofFBI agent Mollica's actions as they relate to the interference charge; specificaHy, h.is assistance to the crew in getting control ofRespondent near the end ofthe 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 THATTHE COMPLAINT 

### PROVIDED SUFFICIENT**NOTIC~:** 

### OFTHE 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, buthe refused. 

### 5. His conductreferenced in the above paragraphs interfered with the performance ofthe 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**~** 002/02415:54 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 ofsection 121.317(f). He knew that the Complaint charged that while the seatbelt sign was illuminated, he was asked several times to take his seat but refused, and as a result, Lhal he was chargedwith violating section 121.317(k), the safety rule regarding compliance with'crcwmember instructions, when he did not comply withthe crews' instructions. And, he knew, by reading the entire Complaint, in context, that such conduct constituted interference in violation ofsection 12l.580. Thus. the level ofhis interference was exacerbated byhim leaving his seat when the flight crew had the seat belt signs illuminated (the evidence revealedthatthis
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. Therepeatedrefusal, during that part ofthe flight, is itselfan exacerbating factor and is relev,ant to whetherhis conduct constituted "'interterence'' and is relevant to the sanction amount Moreover, the Complaint provided thatthe 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 onnotice that he interfered with the crew, and as a result, these allegations satisfythe notice pleading standard. 1. Precedent and regulation affirm the notice pleadingstandard. To the extent that the ALJ is asking whether paragraphs 4 and 5 ofihe Complaint had sufficient specificity to putRespondent on notice ofthe allegations againsthim, we submitthat the Complaint provided adequate notice under the law. The law does not require the Governmentto set 1orth inthe Complaintall ofthe evidence (hal will be



### 3**~** 003/024,Vf/ IV(<::Ol2 15:54 FAX 2024835142 FAA + OMS

adduced atthe hearing. Rather) the law requires that a Complaint provide sufficient notice so that Respondent can prepare and submit h1s defenses. As therecord reflects in this case and as we will out1ine below, Respondent understood the nature ofthe charges against him. Respondcn1 made several arguments in the pre-hearing proceedings (bothin writing and verbally) and during the hearing that demonstrate that heunderstood the charges. Moreover, Respondent's attempt toraise and establish an affinnativc defense, i.e., thathe allegedly had some type ofmedical emergency that would excuse his cpnduct, is itselfrevealing about Respondent's understanding ofthe charges and is compelling evidence againsthim. In essence) the nature ofRespondent's affirmative defense must be animplicitrecognition by him that had anyone else done what he did aboard the aircraft> that person - absent sometype ofvalid allirmative defense

- wouldbe 1ound tohaveviolated the safetyrules. The FAA Rules ofPractice 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 ofany factual or legal allegation and proposed civil penaliy.'' 1 14 C.F.R. § 13.208(c).

1Federal Rule

### ofCivil Procedure 8(a)(2) also sels forth the notice pleading standard requiring only thata pleading contain a "short and plain statementofthe claim showing thatthe pleader is entitled to relief
..."Fed.R. Civ. P. 8(a)(2). Althoughthe Federal Rules are n()t controlling in an administrative proceeding, the U.S. Supreme Court has reaffirmed the notice pleading standard in theFederal Rules. Swierkiewicz v. Sorema, 534 U.S. 506, 512 (2002) ; seeBell 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 

### summaryjudgment so effective, that auempted surprise in federal practice is aborted very easily, synthetic issues detected, andthe gravamen ofthe dispute broughtfrankly into the open for the inspection ofthe court.'' 

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### OMS

In fact, the ALl, in aprevious decision, affirmed and acknowledged the notice pleading standard.• quoting United States Supreme Court and United States Court of Appeals for the D.C. Circuitprecedentthat in an administrative proceeding, a Complaint "is sufficient ifthe respondent 'understood the issue' and 'was atl'orded full opportunity'
. tojustify its conduct during the course ofthe litigation." In re Brendan Airways, FAA DocketNo. CP09EA0007 at *3 (June 7, 2010) (quoting Aloha Airlines v. Civil Aeronautics Bd., 598 F2d250, 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 "evenifthere 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' tojustify its conduct during the course ofthe litigation"'). Mackey Radio, quoted and cited by the ALJ, involved a labor dispute inwhich 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 setforth in the first complaint and by doing so ·"found [the respondent] guilty ofan unfair laborpractice which was not within the issues upon which the case was tried." ld. However, the United States Supreme Court found that 

### "[al review ofthe record shows that at no time during the hearings was there any misunderstanding as to what was lhe basis ofthe Board's Complaint" Id. at 350. The Swierkicwiciz, 534 U.S. at 512-13.


### 5**~**

## 005/024

# ______________..... vu1uno12 15:55 FAX 2024935142 FAA ,. OMS



### Courtthen found that ''[wJhilc the respondenl was entitled to know the basis ·ofthe 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 ofits 

### oilicers as innocent rather than discriminatory." Id. In Aloha Airlines, the D.C. Circuit, aller quotingthe 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 ofthe
... pleading but is the fairness ofthe 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 whetherthe Complaint

### put Respondent on sufficientnotice so that he underslood the issue and was afforded full opportunity 

### tojustify his conduct. 2. Respondentunderstood theinterference issue and, both before and during the hearing,was afforded full opportunityto arguethat his conductdid notviolate the regulations orthat ifhis conductdid -violate the regulations, his eooduct should be ex<lused because ofhis alleged medicalemergency. 

### ALler Complainant put Respondent 

### onnotice that 

### he violated 14 C.F.R.. section 121.580, Respondent cannot credibly claimthat he did not understand the nature ofthe allegations nor was a1Iorded a full opponunity to argue that the Complainant did not prov<:: the allegations or that even 

### ifpro'Vcd, that his alleged medical emergency should
excuse his conduct. First, Respondentparticipated 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** 008/024vrt**IV/~012** 15:55 FAX 2024935142 FAA -+ 

### OMS

theirduties. Pre·hearing conference Tr. 53 (Oct. 18, 2011). Here, Respondent did not tell theALJ or Complainantthat he did not understand the charges in the Complaint, as he could have ifthat had really beenthe case. Rather, Respondent denied that he intcdcred with crewmemberduties. Jd. He did no1 question the basis for or seek clarification ofthe interference allegations. This demonstrates thathe "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 passengeron an aircraft. Pre·hearing conference Tr. 40-47 (Mar. 2, 2012). This demonstrates Respondent's capacity and wherewithal to questionthe basis for the interference 

### allegations. Inother words, 

### Respondent,s arguments thalthe FAA

### lacked the legal authority to assess a civil penalty against a passengeris 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 subjectivelyunderstands the nature and gravamen ofthe Complaint. In none ofhis documents and in none ofhis verbal arguments did he claim any ambiguity inthe Complaint orany confusion in his mind about the nature ofthe charges. Respondent understoodthese allegations. Significantly, during the hearing, while Respondent never claimed any uncertainly about the nature ofthe charges against him, his affirmative defense itselfis compelling proofofhis recognition about the c1arity ofthe Complaint and his understanding ofthe compelling evidence that supports the al1egations in the Complaint.



### 7 Ia} 

### 007/02407/10/2012 15:55 FAX 2024935142 FAA**~** OMS

Respondent testified that his multiple failures to comply with crewmemberinstructions to sit down, as set forth in the Complaint, resulted from a medical emergency requiring him toleave hjs seat when the**~eat-belt** sign

### was on to "seek[ ] help from theperson in charge." Tr. 144. While his medical emergency affirmative defense couldbe viewed as
an attempt to excuse his violations ofsections 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) bythe evidence against him

### in that he hadprepared 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, itis apparent from the transcript thatRespondent understood the interference issue, and that he soughtto excuse his conduct by offering an affirmative defense rather than disputing the basis fMthe 

### interference violation. 

### In this regard, Respondent "was afforded full opportunityto justify [his) conduct during the course ofthe litigation" and in fact, sought to do so. In re Brendan Airways, FAADocket No. CP09EA0007 at *3. ln sum> the record before the ALJ shows that Complainant put Respondent on

· notice ofthe all ofthe charges, including the interference charge, thathe 

### understood the

issues and was afforded full opportunitytojustify his conduct. Thus, precedent, regulation, and the record in this case support a finding that Complainant's C0mplaint contained sufficient notice ofthe allegations against

### the Respondent.

2 In any event, Respondent's 

### claimed "'medkal emergency'' does not excuse his 

### conduct. See fAA v. Schwager, FAA DocketNo. CP06SW0010 at *4 (May 23, 2008). 

### 8 

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A. RESPONDENT'S CONDUCT AND INTERACTIONSWITH CREWMEMBERS AND PASSENGERS DURING THE ENTIRE FLIGHTEXIDBITTHEESCALATING NATURE OFHIS INTERFERENCE, THEREBYUNDERMINING ANYOFHIS CLAIMS ORDEFENSES THAT HE HAD SOME TYPE OF MEDICAL "INABILITY TOUNDERSTAND" OR "INABILITYTO COMPLV91 WITH THE CREWS' INSTRUCTIONS AND SUPPORTING IDS VIOLATIONS OF SECTIONS 121.317(1), 121.317(k), and 121.580. 

### Paragraphs 4 and 

### 5ofthe Complaint put 

### Respondent on notice 

### thatheinterfered with

### crewmembers when 

### he was asked several 

### times but refused 

### to take his 

### scat while the 

### seatbelt sign was on. WiLness testimonydemonstrates 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 stuffabout interaction with Mr. Mollica, and 

### communications with Ms. 

### Tomchik are riofdirectly relevant to that al,Jegation." Tr. 156. 1. Respondent's conductprecedingthe final45 minutes ofthe flight is directly relevantto whether Respondent should befound 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 

### ofthe flight.l 

### However, that conduct 

### is relevant to 

### establishing the motive for his noncompliance during the !inal4S minutes, the escalating nature ofhis conduct and 

### that he 

### both ui:lderstood and was capable ofcomplying with crewmember instructions butchose to disregard the crew's instructions in 

### the later parts of

### the tli

### ght.

3 Testimony 

### at the hearing establishedthat 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 violatedthe regulation cited 

### in the Complaint. 

### 9 ldl 009/02.107/10/2012 15:55 FAX 2024935142 FAA + OMS



### Ms. Tomchik's deposition and Respondent's written submission, "Testimonyof Respondent" make clearthat Ms. Tomchik was the recipient ofRespondent's unwanted verbal and physical attention. Exhibit C-2, page 11-16; see ExhibitC-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 ofthe 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 ofthe aircraft. Respondent at first refused, then complied reluctantly. Tr. 36-37. Afterthe night

### attendants reseated Respondent 

### in Row 18, he attempted on several 

### occasions to walk to the front ofthe aircraft. 

### Tr. 41-42; 

### 77.78. Eachtime Flight AttendantDwnond told him to**~it** 

### down priorto 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. Tomchikorto remain in his seat with his scat bell fastened prior to the 11nal45 minutes ofthe flight, this
was not a 

### situation where 

### Respondent did 

### not understand or was incapable ofcontrolling himsdf. Tr. 85, 

### lines 10-13;**142~43.** 

### The evidence regarding

### the events preceding the lasl

### 45 minutes oftheflight establishes that Respondent. understood and was capable of complying with flight

### attendant instructions to remain seated and to refrain from contacting Ms. Tomchik. Thus 1

### for example, Respondent cannot credibly claim that some type ofmedical condition, for which he provided no documentation inthe record, prevented him from**compreh~nding** 

### instructions when the evidence demonstrates that: (1) he 

### understood



### 10 @010/02407/10/2012 15:55 FAX 2024935142 FAA + 

### OMS

when he was initially told to come to the rear ofthe aircraftto discuss the matter; (2) he understood when the crew required him to be reseatcd near the back ofthe aircraft as a consequence ofhis 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 inRow 18 after he walked past his seat toward the front ofthe aircrafi after exiting the aft lavatory_ The evidence ofRespondent's conduct prior to the final.45 minutes ofthe flight tlrmly establishes his motives and intentions toward the end ofthe Hight. Specifically, when Respondent arose from his seat in the back ofthe plane and walked "withpurpose" to the front ofthe plane inthe final 45 minutes ofthe flight, this was not a situation where the Respondent was acting aimlessly orwhere he Jacked lucidity orpurpose. 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 ofpreventing conflicts among the passengers that had the potential oferupting into physical altercations. Tr. 117, 121; Exhibit C-2, page 18, lines 22·25. Respondent decided thathis 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 beltwhenthe 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 causedthe fasten seatbelt sign to be illuminated, we submitthat 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 ofthe evidence regarding Respondent's conduct during the flight in the time preceding the last45 minutes ofthe flight was that it demonstrates thatthe instructions provided to him from the crew during the final45 minutes ofihe flight werenot a surprise. The instructions were consistent with the earilcr instructions he had received to stay away from Ms. Tomchik, to remain al the rear ofthe aircraft, and to remalnin 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 ofrhe flight. Instead, this was a situation where Respondenthad been given many instructions to stay away from Ms. Tomchikand where he had earlier slowly and reluctantly complied and wherehe made attempts to contact her anyway. Respondent's conductpreceding the lasl4S minutes ofthe flight is relevant to establishing the escalating nature ofthe situation. What started as attempts 

### by the crewto diffuse the situation 

### by separating Respondent from Ms. Tomchik, led to having to repeatedly monitorRespondent because he made a few attempts to contactMs. Tomchik again, that in tum led to a confrontation outside the cockpit door, that in turnled 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 ofthe anned FBI agent who also tried several times to di1Iuse the situation and emphasizedthe need for Respondent to comply with 

### Lhe instructions from the cabin crew. In fact, Ms. Moormanhad briefed

### the captain ab()ut Respondent's conduct, including his conduct before the final 45 minutes ofthe only failed to comply with the verbal instructions directly and specifically addressed to him

### trom theflight attendants, but his actions also failed to comply withthe instructions ofthe captain- which were communicated to all the passengers via the illuminated sign. Thus, Respondent's action during the Last parts ofthat flight, in the circum.:itances ofthe case, not only constitute violations ofthe cited subsections ofsections 121.317, butthey also constitute interference inviolation ofsection 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 ofthe situation andresulted in him telling theflight attendant to seekassistance from the FBI agent and resulted in him making a radio call to seekto have lawenforcementpersonnel at the gate whenthe aircraft arrived in Las Vegas. Tr. 51. Thus, that inform.l:\1ion aboutthe escalating nature ofRespondents poorbehavior- from reluctant and slowcompliance, to attempts to quickly approacl1 Ms. Tomchik's area before the crewintervened, to an absolute refusal to comply with the crcwmember's instructions during the last 

### 45 minutes oftho Llight- is relevant to the level ofhis culpability 

### fM his noncompliant conduct toward the end ofthe flight and was relevant in**t~rms** ofhowhis conductnot only interfered with the crew's duties butwas also relevaut to the level ofhis interference with the pilots' safety duties. 

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

### that Respondent interfered with crewmembcrduties andwhy FBI Agent Mollica's actions in support of

### the cabin crew arerelevant and demonstrate anotheraspect ofhow Respondentinterfer-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 otherpassengers, and retaining control as a · crewmember. ld
.. at *4. The Administratoralso found that a captain's decision "whether to make an unscheduled landing or arrange 

### for security to meetthe**plane'~** constitutes interference with the captain's normal duties. ld. at *5. In Stout, the ALl rejected :Mr. Stout's argument that he did notthreaten the safety ofthe aircraft because he intended to fasten his seatbeltwhenhe felt it was necessary, finding that 

### it «completely ignored the importance ofmaintaining a safe and orderly environment in the**cabin.~'** ld.

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### OMS

The discussion ofcrewmembcrduties in Stout andhowthat respondent interfered with those duties supports finding 

### that Respondent interfered with 

### the duties ofthe crewmembers in the present case, 

### as discussed below.


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

### cabin. 

### Mr. Dumond Lestified one ofhis 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 oninter1ere 

### with that duty, he testified that it would be detrimental andprohibit the flight attendants 

### irom perfomting their duties. Tr. 91. The evidence showed that inthe final 45 minutes, Respondent arose from his seal when the captain had illuminated the seat belt sign due to turbulence, and thatthe 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 ofthe ordinary duties ofa Hight 

### attendant and thus distracted her from her normal duties. Specifically. Ms. Moom1an had to move passengers seated in Row 3 to.clearthat.row

## ofseats so that Agent Mollica and Respondent could sit torthe remainder ofthe 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 itdirectlyinterfered 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 otherpassengers During the final45 minutes ofthe 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" ofthe aircraft. Because they are assigned to work 

### aparticular section o.1:the aircraft, the necessity ofdirecting their full attention to Respondent distracted them from, and interfered with, their duties both to attend to otherpassengers seated in their assigned sections ofthe 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 ofthis 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 thathis conduct interfered with the duties ofthe FBI agenl. However, the crew sought the assistance ofAgent Mollica when Respondent moved quickly up the aisle, pastMs. 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 

### Mollicato assist them in getting forced physical control over the Respondent. Tr. 43, 81. Moreover, when Respondent, in handcuffs and being led to a row ofseats, 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 ofseats that Ms. Moorman made available for him and the FBI agent d. Arranging for security to meet the aircraft FAA 

### Inspector Driscoll testified thatphone 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 conductthat resulted in the flight crew calling for Jaw enforcement interfered with their nonnal duties ofmonitoring systems and lislening for radio calls. See id. at *5.
e. The totality ofthe circumstances 

### ln the appropriate case, Complainant could charge a passenger with interfering with the duties ofacrewmember in one instance ofdelayed reluctant compliance. In this case, Rcspondenl was on notice ofthe crew's instructions to him to stay away n-om

· Ms
.. Tomchik. Despite those instructions earlierin the flight, he started apattern of

reluctant compliance followed by attempts to stealthily orquickly 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 ofnoncompliance 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 141018/024a7/10/2012 15:58 FAX 2024835142 FAA -o OMS

Atthe end ofthe tlight, with turbulent airconditions, 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 ofthe aircraft, he ignored those instructions andrefused

# 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 ofcrewmembers. For· example; the flight attendants had to focus onhiminstead ofgenerally 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'snoncompliance resulted in otherpassengers beingjeopardized. Forexample, Respondent's pushing back against Agent Mollica while the agent escortedthe handcuffed Rcspond<::nl back to a rowinthe passenger cabinjeopardized his saf'tlty as well as the safety ofother passengerslnthe
area. One flight attendant observed Respondent's pushing actions

- andthatin and of itselfwas an unsafe and violative interference withnormal crewmember duties. Furthermore, Respondent's noncompliancejeopardized 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 ofthe aircratl io therear ofthe aircraft during the ;,;tircrd.ft'

### s flight inturbulent**~ir** conditions. Moving passengers outoftheir seats to the rear ofthe aircraft during turbulence in orderto free a
row ofseats atthe 

### front ofthe aircraft for the handcuffed Respondent and the FBT agent interfered with the crewmembers normal duties ofmaking sure thatthe passengers remainedseated during such flight co'nditions.



### 1707/10/2012 15:58 FAX 2024935142 FAA -t OMS



### B. DISCUSSION OF 

### SANCTION AMOUNT 

### FOREACH

### OF THE THREE CITED VIOLATIONS. We believethat the evidence establishes that Respondent violated section 121.580 and we submit thatthe 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 thatthe situation onthe aircraft escalated overthe
course ofthe 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

## orothers in 

### that aircraft, contrary to three FAA safety regulations. It is relevant, when assessing 

### sanctionto 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 ofsuccess 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. Althoughthethree charges cited relate to 

### Respondent's conductduring the last

### 45 minutes ofthe flight. the evidence presented about his conduct and the crew's interactions with him during earlierportions ofthe flight is relevant to liability as well as the sanction amount: His conductduring the final45 minutes ofthe flight warrants the imposition ofthe fidl sanction amount of $5,500. His actions and the actions ofthe crewmembers during the time preceding the last 45 minutes ofthe 

### 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 ofProposedCivil 

### Penalty as well as the 

### Amended Notice 

### ofProposed Civil Penalty. As originally written,


### 18 @018/02407/10/2012 15:58 FAX 2024835142 FAA + DMS

the Notice ofProposed 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 Respondenthadhis 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, Complainantoutlined 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 orthe 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 ofProposed Civil Penalty (the only regulation cited in that original Notice ofProposed Civil Penalty), but indicated that after the violations for sections 12L317(f) and 121.317(k) were added to the Amended Notice ofProposed Civil Penalty, that the totality ofthe circumstances warranted a $5,500 civil penalty. 5 Complainant's pre-trial briefthenreviewed case law pertaining to violations ofsections 121.317(f), 12l.317(k), and 121.580, and the associaied civil penalties in support ofits argument that all ofthe circumstances, including sanction guidance, case law, and the facts ofthe case warranted a total civil penalty of$5,500 for all ofthe violations.



### sThe ALJ stated that two ofthe violations (i.e.• sections 121.317(.f) and 121.317(k)
. "didn'texist at the time you filed the Complaint." Tr. 159 a\ lines 11-12. However, both the Amended Notice ofProposed 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 ofthe 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 reductionbut stated that "[.tlhis decision does not affirm the particular penalty breakdown specified by 

### the lawjudge. It indicates only that $1,700 is an appropriate penalty under the totality ofthe circums1ances.'' Stout, FAA OrderNo. 9&-12 at *7 n9;**~FAA** 

### v.Digenova, FAA Docket No. GP07WP0007 at *3 (June 25, 2008); .FAA v. Bergstrom, FAA DocketNo. CP04WP0020 at *3 (Apri122, 2005). Nonetheless, ifthe ALJ 

### or the FAA 

### decision.maker rules that Respondent did

### not violate section 121.580, but that he did violate one or both ofthe other regulations cited in the Complaint, then Complainant respectfully submits that the following civil penalty amounts would be warranted in 

### view ofcase law and the

### Administrator's sanction guidance. Under FAA Order 2150.3B, "Failure to fasten seat belt while seatbelt 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 ofan 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 ofthe moderate to maximum range is $2,475. Under agency sanction guidance, the starting point for aviolation ofsection 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/17213 

### 20**~** 020/02407/10!2012 15:57 FAX 2024935142 FAA + OMS



### violation ofsection 12l.317(f), 

### the closest analogous provision in the sanction guidance for a violation ofsection 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 ofsection 121.317(f) and 121 J 17(k), case 

### law also should be considered under the totality ofthe 

### circumstances. 

### In this regard, Complainantrefers 

### the ALJ 

### to FAA v. Flores, 

### FAA Docket No. CP08WP009 (Aug. 20, 2009), discussed on pages 6-8 ofComplainant'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 offher phone, screamed at the flight 

### attendant, and failed to remain seated while the scat belt 

### sign was illuminated a!terrepeated commands 

### by the Hight attendant to remain seated. Flores, FAA DocketNo. 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, iftheALJ determines that Respondent did not violate section 121.580, Complainant subtnits that acivil penalty of$1,500 for each violation ofsection 121.317(f) and 121.317(k) is appropriate, for a total civil penally of$3,000 for both ofthese violations.



### 21 141021/02407/10/2012 15:57 FAX 2024935142 FAA + OMS



### In this particular case, one could view the violations ofsection 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, inthis casethe bad conductthat 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~** 

### ofhow 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 instructionregulation and the fasten scatbelt regulation. We submitthat 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 121.580, Complainantrespectfully requests that the ALJ assess a civil penalty of$3,000 for 

### Respondent's violations ofsections l21.317(f) and 121.317(k).

22**~** 022/02407/10/2012 15:57 FAX 2024935142 FAA

Dated: July 2, 20I2



### 23 ? OMS

Respectfully submilled, 

### PeterJ. 

### Lynch Assistant ChiefCounsel 

### Enforcement Division, 

### AGC-300 

# By:&!¥
Attomey, Enforcement Division/AGC-300 Office of

### the ChiefCounsel 800 Independence Ave., S.W.**Washin~:rton,** D.C. 20591 Telephone: 

### (202) 267·9958 Facsimile: (202) 267-5106 @023/02407/10/2012 15:57 FAX 2024835142 FAA + OMS

CERTIFICATE 

### OF SERVICE I hereby**c~nify** that 1have sent on this date by Federal Express, a copy ofthe foregoing Complainant's Post Hearing Briefin FAA v_ Brian Wallaesa, FAADocket No. CPIOWPOOlO, FDMS 

### No. FAA-2010-0628, addressed to: Hon. Ronnie A. Yodcr 

### ChiefAdministrative 

### Law Judge Ollice ofHearings, 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- Suite2W1000

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

24**~** 024/024