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UNITED STATES DEPARTMENT OF TRANSPORTATION .^^qPARTMENT OF 

FEDERAL AVIATION ADMINISTRATION l •' Vj§°pRTATlON 

WASHINGTON, DC ' ^ - ^ UrcilATIONS 

In the Matter of: GERALD W. KELLER - i ^IC 1 A IQ: 15 

FAA Order No. 2011-2 

Docket No. CP06GL0007 

FDMS No. FAA-2006-25869' 

Served; January 11, 201) 

ORDER GRANTING THE FAA TIME TO FILE A REPLY BRIEF' 

I. Intruduction 

This unusual appeal involves two civil penalty actions brought serially against the 

respondent, Gerald Keller, based upon his allegedly disruptive conduct while a pa-ssenger 

on board an Air Tran flig.ht before takeoff on December 18, 2005. Prior to any hearing, 

the ALJ struck the FAA's amended complaint. Subsequently, the AL J granted the 

agency's request to withdraw its original complaint without prejudice. In a motion to 

vacate, Keller requested that the ALJ vacate the order of dismissal, arguing that ALJ's 

dismissal of the proceedings without prejudice after the FAA withdrew the complaint was 

contrary to the Rules of Practice. The ALJ never ruled upon Keller's motion to vacate. 

The FAA later initiated a second action against Keller. When Keller failed to 

respond to the Final Notice of Proposed Civil Penalty (FNPCP), the FAA issued an Order 

' Generally, materials filed in the FAA Hearing Docket (except for materials filed in security 

cases) are also available for viewing at http://www.revelations.gov. See 14 C.F-R. 

§ 13.210(eXl). 

The Administrator's civil penalty decisions, along with indexes of the decisions, the rules of 

practice, and other information, arc available on the Internet at the following address: 

ww^'.f(ui.gov/ahout/ojfice_org/headguarrers offices/a^c/pol_adjudication/AGC400/ 

CivilJ'enulry. See 14 CF.K. § 1.1210(c)(2), In addition, Thomson ReiKcrs/Wcst publishes 

Federal Aviation Decisions. Finally, the decisions arc available through LBXIS (TRANS library) 

and WcsiLaw (FTRAN-FAA database). For additional information, see ihc Web site. 
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Assessing Civil Penalty (OACP). Keller now asks the Administrator to review the ALJ's 

dismissal of the first complaint without prejudice as well as the issuance of the OACP in 

the second action. 

As explained below, Keller's motion to vacate filed on July 30, 2007, i.'; construed 

as a limcly notice of appeal of the ALJ's .Tuly 24, 2007, order dismis.sing the case without 

prejudice and as an appeal brief The FAA is granted 35 days from the date of the 

issuance of this order in which to file a reply brief 

11. Background 

The FAA filed its original complaint in the first civil penalty action on 

September 22, 2006, alleging a violation of 49 U.S.C. § 46318' and seeking a $2,500 

civil penalty. The FAA alleged that Keller appeared to be under the influence of alcohol, 

pushed other passengers as he walked down the aircraft aisle during the boarding process, 

and engaged in "verbal altercations" with other passengers once he reached his seal. 

Subsequently, the FAA filed an amended complaint, alleging that Keller's actions 

not only disturbed other passengers but also interfered with the performance of the duties 

of the crevraiembers in violation of 14 C.F.R. § 121.580.'' Specifically, the agency added 

Section 46318 provides in pertinent part as follows: 

An individual who physically assaults or threatens to physically assault a member of the 

fliglit crew or cabin crew of a civil aircraft or any other individual on the aircraft, or takes 

any action that poses imminent threat to the safely of the aircraft or other individuals on 

the aircraft is liable to the United States Government for a civil penalty of not more than 

$25,000. 

Section 121.580 provides; 

No person may assault, threaten, intimidate, or interfere with a crewmcmber in the 

performance of ihe crcwmember's duties aboard an aircrail being operated under this 

part. 
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the allegations that Keller's conduct had been .so disruptive that the captain had to deviate 

firom his duties to speak to Keller and that the aircraft crew "deemed it necessary to have 

the local authorities remove" Keller from the flight. 

Under 14 C.F.R. § 13.214(b), the FAA is permitted to amend a complaint without 

the ALJ's consent as long as it files tlie amendment no later than 15 days before the 

scheduled hearing date. In this case, however, although the ALJ had not yet scheduled a 

hearing, he struck the amended complaint because, he wrote, "|i|t seems fundamentally 

unfair to allow ilic FAA to take an ongoing proceeding based on some very specific 

allegations and lum it into a vehicle lor charging the Respondent with entirely different 

violations." (Order Denying Motion For Summary Judgment And Striking "Amended To 

Complaint," dated July 3, 2007, at 2-3.) The ALJ wrote thai the FAA could initiate 

another proceeding and allege violations of 49 U.S.C. § 46318, 14 C.F.R. § 121.580, or 

both. {Id., at 3.) 

Subsequently, the agency sought to withdraw its original complaint without 

prejudice and, on July 24, 2007, the AlJ granted the FAA's motion to withdraw the 

original complaint without prejudice.' In so doing, ihe ALJ disregarded the provision in 

the Rules of Practice, specifically, 14 C.F.R, § 13.215, that if the agency attorney 

withdraws the complaint, the ALJ shall dismiss the proceedings with prejudice. The ALJ 

wrote that an enforcement agency has the inherent right to withdraw a complaint without 

prejudice and "start anew" as long as the applicable statute of limitations has not run. 

(Order Granting Motion To Dismiss Complaint Without Prejudice, dated July 24, 2007.) 

^ The phrase "without prejudice" means that there has been no adjudication of the claim on the 

merits, and iherefDrc, in a subsequent action, an order of dismissal has no res Judicata effect. 

Saeer v. Hunter Corp.. 665 P. Supp. 575, 580 (N.D. 111. 19«6). 
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Keller filed a motion ("motion to vacate") on July 30, 2007, in which he requested 

that the ALJ vacale his July 24, 2007, order and dismiss ihc case with prejudice.*' Keller 

argued in the motion to vacate that the ALJ's order was contrary to 14 C.F.R. § 13.215, 

and consequently, was "illegally void." The AJJ neither ruled on Keller's motion to 

vacate nor forwarded it to the Administrator for consideration as an appeal. 

The FAA initiated the second case by sending another Notice of Proposed Civil 

Penalty (NPCP) alleging violations of both 49 U.S.C, § 46318 and 14 C.F.R. § 121.580 

on Augusi 21, 2007,' and another FNPCP on March 26, 2008. After receiving no 

response to the FNPCP, the FAA issued an order (OACP) assessing a $2,500 civil 

penalty against Keller on February 8, 2010, for violations of both 49 U.S.C § 46318 and 

14 C.F.R. § 121-580. 

On February 26, 2010, Keller filed a document entitled "Notice of Appeal And/Or 

Request for Extension of Time to Appeal." In this document, Keller appealed from the 

ALJ's failure to enter a ruling on the motion lo vacate (in the first case). In addition, 

Keller appealed from the OACP (in the second case) because, he argued, the FAA was 

"estopped from asserting a second enforcement action based on prejudicial error 

committed by the administrative law judge." 

' "A judgment dismissing a case 'with prejudice' bars a later suil on the same cause of action." 

Foxx V. Dalton. 46 F. Supp. 2d. 1268, 1273 (M.D. Hla. 1999). A voluntary dismissal with 

prejudice constitutes a final adjudication on the merits ior rex judicata purpo.^es on claims that 

were raised or could have been raised in th« original lawsuit, NBN Broadcasting Inc.. v. Sheridan 

BroadcasiinR Networks. Inc., 105 F.3d 72, 78 (2d Cir. 1997), Under the doctrine oi res judicata, 

a subsequent lawsuit between the same parties on the same cause of action is barred. To 

determine whether the earlier and subsequent cases involve the .same cause of action, the courts 

will look to sec if the cases involve a common nucleus of operative facts, or in other words, if th« 

underlying facts of the two cases arc "related in lime, space, origin, or motivation," if'they form 

a convenient trial unit" and if their treatment as a unit conforms to the parties' expeeuiions." 

Waldman v. Village of Kirvas Jwl. 207 F.3d 105, 108 (2d Cir. 2000). 

' Section 13.16(f) provides that "[a] civil penalty action is initialed by sending a notice of 

proposed civil penalty to the person charged with a violation .,,." 14 C.F.R. § 13.16(0 
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The FAA subsequently filed its Mouon to Dismiss Respondent's Notice of 

Appeal /^d/Or Request for Extension of Time to Appeal ("motion to dismiss"). The 

FAA wrote that Keller's appeal is either an untimely appeal of the ALJ's .Tuly 24, 2007, 

order dismissing the proceedings vvjihout prejudice (in the first action) or an untimely 

appeal of the FNPCP dated March 26, 2008, (in the second action). Keller did not reply 

to the FAA's motion to dismiss. 

On March 11, 2010, Kefier filed a document entitled "Petition for Review and 

Dismissal of Order Assessing Civil Penalty with Prejudice and/or Appellant's Brief" In 

this document, Keller requested that the Administrator dismiss the OACP for the 

following reasons. He argued that the OACP was a nullity because (1) the FAA was 

estopped under 14 C.F.R. §13.215 from instituting a second enforcement action based on 

the same facts alleged in the withdrawn complaint, and (2) a hearing had not been held 

despite his request for hearing dated September 5, 2007 in the original action. The 

agency did not file any reply. 

ITL Discussion 

The Administrator must untangle this peculiar web of motions, orders, allegations 

and cases, to bring this matter back within the framework of the Rules of Practice. 

1. Keller's Motion to Vacate dated July 30. 2007. In his motion to vacate, Keller 

requested that the ALJ reconsider his order dismissing the complaint without prejudice 

and replace it with an order of dismissal with prejudice. However, the Rules of Practice 

do not provide for such a motion for reconsideration of an initial decision by an Al.J." 

Instead, the Rules of Practice provide; 

Unless appealed pursuant to § 13,233 of this subpart, the initial decision issued by the 

administrative law judge shall be considered an order assessing civil penalty ifihc 
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The Administrator has held in past cases that the ALJ lacks jurisdiction over a proceeding 

once the initial decision has been issued." Hence, the Administrator has held, an ALJ 

does not have the authority to rule upon a motion to vacate an initial decision. 

Deeenhardt. FAA Order No. 1990-16 at 6 (August 16, 1990) ("the fact is that a law judge 

loses jurisdiction over a case upon the issuance of the initial decision, and thereafter has 

no authority to entertain a motion to vacate.") A party, however, is not without recourse. 

The Rules of Practice, specifically 14 C.F.R. § 13.233, provide for an appeal from an 

initial decision to the Administrator as long as the party files a noiice of appeal no later 

than 10 days after the issuance of the initial decision and perfects that appeal by filing an 

appeal brief 

In this case, the ALJ should have forwarded the motion to vacate to the 

Administrator for consideration as a notice of appeal, as other ALJs have done in similar 

situafions in the past.'" Despite the significant passage of time, the Administrator now 

administrative law judge find.s that an alleged violation occurred and determines thai a 

civil penalty, ... is warranted. 

14. C.F.R. § 13.232(d). 

' E.g.. Han-is. FAA Order No. 2005-14 (August 17, 2009) (ALJ lost jurisdiction over the matter 

once he issued an order dismissing the complaint with prejudice); Luxemburg, FAA Order No. 

1994-18 (June 21, 1994) ("Once the ALJ issued hi.i; order assessing the civil penalty, he lost 

jurisdiction of the ea.se, and had no authority to re-opcn it"); Barnhill. FAA Order No. 1992-32 

(May 5, 1992) (holding thai "fwlhcn a law judge issues an initial dcci.sion, his or her jurisdiction 

over a case ends"); Eaddy. FAA Order No. 1992-32 (May 4, 1991) (AIJ had no jurisdiction lo 

entertain a request for rehearing), 

'" ^-K; Gordon Air Services, FAA Order No. 1997-24 (July I, 1997) (in which the ALJ had 

construed the respondent's "Motion for Rehearing/Reconsideration" !i.s a notice of appeal and 

forwarded it to the Administrator for consideration as an appeal from the initial decision); Pere^, 

FAA Order No. 1994-23 (June 27 1994) (in which the AL.1 forwarded a letter tiled after the ALJ 

dismissed the proceedings and asbcs.sed a civil penalty to the Administrator for consideration as 

an appeal). 
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construes Keller's motion to vacate as a notice of appeal from the ALJ's July 24, 2007, 

order dismissing the proceedings without prejudice." 

A party filing a notice of appeal is required under Section 13.233(c) to perfect its 

appeal by filing an appeal brief. The Administrator may dismiss a noiice of appeal if the 

appellant fails to perfect its appeal by filing an appeal brief 14 C.F.R, § 13.233(d)(2). 

The Administrator, in past cases, has construed notices of appeal as appeal briefs -

thereby, in essence, saving otherwise unpcrfectcd appeals firom di.smissal under Section 

13.233(d)(2)'' - when the notice of appeal contained sufficient detail to explain the basis 

of the appellant's appeal, satisfying the requirements for appeal briefs under 14 C.F.R. 

§ 13.233(d)(l).'^ In this case, ihe motion to vacate is construed as an appeal brief, as well 

as a notice of appeal, because it sets forth Keller's argument that the ALJ should have 

dismissed the proceedings with prejudice under 14 C.F.R. § 13.215.'^ 

Under 14 C.F.R. 13.233(e), any party may file a reply brief within 35 days after 

service upon that party of the appeal brief In this instance, ihe FAA will be granted 35 

" Continental Airlines. FAA Order No, 1991-11 (April 11, 1991) (in which the respondent's 

motion to vacate default judgments entered by the ALJ were constmcd a.<i an appeal brief); see 

Wine Countrv Helicopters. Inc.. FAA Order No. 2008-12 (December 15. 2008) (in which the 

respondent's motion requesting that an OACP be set aside was constnied as a notice of appeal), 

appeal dismissed, FAA Order No. 2008-13 (December 19, 2008). 

'^ Section 13.233(d)(2) provides: "The FAA decisionmaker may dismiss an appeal on the FAA 

decisionmaker's own inhiative .,, where a party has filed a notice of appeal but fails to perfect 

the appeal by timely tiling an appeal brief with the FAA decisionmaker." 

'^ Sec Lewis, FAA Order No. 2005-7 (April 11, 2005), in which a letter addressed to the Hearing 

Docket clerk, which had been construed as a noiice of appeal, was also construed as an appeal 

brief because it was sufficiently detailed to explain the basis of the appeal). 

'•* On July 19, 2007, the ALJ denied Keller's motion to reconsider the denial of Keller's motion 

for summary judgment. To the extent that Keller may have intended to appeal from that order in 

his July 24, 2007 motion to vacate, that appeal is dismissed. The July 19, 2007, denial of the 

motion for reconsideration docs not constitute an initial decision in this matter, and, consequently, 

the issues related to summary judgment are not properly on appeal before the Administrator. 
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days to file a reply brief from the date of the issuance of this order construing the motion 

to vacate as an appeal brief 

2. Keller's Notice of Appeal dated February 26, 2010. Keller asserted that he 

filed his Notice of Appeal under 14 C.F.R. § 13.219(c), which is the rule permitting 

interlocutory appeals of right. Section 13.219(c) provides a party with an interlocutory 

appeal of right to the Administrator before the issuance of an initial decision if the ALJ 

fails to dismiss a case in accordance with Section 13.215. Keller filed the Notice of 

Appeal on February 26, 2010, long after the ALJ issued the initial decision in this matter 

on July 24, 2007. Hence, to the extent that this document represents an interlocutory 

appeal of the ALJ's initial decision, it is dismissed. 

Further, in this document Keller argued that he was appealing from tlie ALJ's 

failure lo rule upon the July 30, 2007, motion to vacate, as well as from the order 

assessing a civil penalty which, he asserts, he received on or about February 12, 2010. 

The Rules of Practice do not provide for review of an ALJ's failure to take an action. At 

this point, there is no need to rule on Keller's notice of appeal to the extent that he is 

appealing from the M S % failure to rule upon the motion to vacate, because ihe 

Administrator has construed the motion to vacate as a notice of appeal and appeal brief 

Hence, Keller will get the review that he seeks of the ALJ's order of dismissal without 

prejudice. For this reason, as a notice of appeal from the ALJ's failure to rule upon the 

July 30, 2007, motion to vacate, the notice of appeal is dismissed. 

Regarding his appeal in this document from tht OACP, Keller seeks reversal of 

the OACP because, he argues, the FAA failed to give proper notice and opportunity for 
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hearing.'^ The Rules of Practice do not provide for direct review by the Administrator of 

an order assessing civil penalty issued by FAA coimsel under 14 C.F.R. § 13.16(d)(2).'* 

Hence, the Administrator will not consider Keller's argument that the FAA did not 

provide adequate due process when it issued the OACP. 

For these reasons, Keller's Notice of Appeal dated February 26, 2010, is 

dismissed. 

3- Keller's Petition for Review and Dismi.ssal of Order Assessing Civil Penalty 

with Prejudice and/or Appellant's Brief dated March 11. 2010. Keller purportedly filed 

this document under "Sections 13.219, 13.233 and/or 13.234." U is not an interlocutory 

appeal under Section 13.219 of the ALJ's initial decision, for the same reason that the 

Noiice of Appeal is not an interlocutory appeal of right- it was filed after the AIJ issued 

the initial decision. As an appeal brief, the document is dismis.'sed because the Notice of 

Appeal dated February 26, 2010, was dismissed. Further, as a petition to reconsider or 

modify under 14 C.F.R. § 13.234, it i.s premature because the Administrator has not yet 

issued a final deei.sion and order under 14 C.F.R. § 13.233. 

IT IS HEREBY ORDERED THAT: 

(I) Keller's motion to vacate is construed as a notice of appeal from the ALJ's 

order di.smissing the original action without prejudice, and as an appeal brief 

'^ He also argues thai the FAA misrepresented material facts and that the findings offset arc not 

supported by a preponderance of the reliable, probative and substantial evidence. Considering 

that the ALJ did not make any findings of fact, that argument is frivolous and merits no further 

attention. 

"An order assessing civil penalty may be issued if a person charged with a violation docs nol 

request a hearing under paragraph (g)(2)(ii) of this section f 14 C.F.R, § 13.16(g)(2)(ii)] wiihin 15 

days after receipt of a final notice of proposed civil penalty." 14 C.F.R. § 13.16(d)(2). 
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(2) The FAA may file a reply brief within 35 days from the issuance of this order 

that addresses the issues raised in Keller's appeal, i.e., did the ALJ have the authority to 

dismiss the proceedings without prejudice, and if not, should the Administrator dismiss 

the proceedings with prejudice. 

(3) Keller's Notice of Appeal dated February 26, 2010, and his Petition for 

Review and Dismissal of Order Assessing Civil Penalty with Prejudice and/or 

Appellant's Brief dated March II, 2010, are dismissed. 

(4) After receiving any reply brief from the agency attorney, the Administralor 

will request additional briefing only if the Administrator deems additional briefing 

necessary. Once briefing is completed, the Administrator will issue a decision resolving 

Keller's appeal under 14 C.F.R. § 13.2330)(2). Keller may not file any further briefs or 

motions unless requested by the Administrator, 

ViJ,-^ 

J. RANDOLPH BABBITT 

ADMINISTRATOR 

Federal Aviation Administration 

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