U.S. DEPARTMENT OFTRANSPORTATION OFFICE OFHEARINGS

WASHINGTON, D.C. I') !/ 

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IN THEMATTER OF: RIAN C. SEEMAN. FAADocketNo. FAA-2012-0198 Judge J.E. Sullivan Respondent. FAACASENO. 2011S0370103

MOTION TO DEEMALLEGATIONS ADMITTED AND FORDEFAULTJUDGMENT 

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The Complainant, by and throughthe undersigned attorney, pursuantto Section 13.218 of the Rules ofPractice in FAA Civil Penalty Actions [14 C.F.R. §13.218], and Rule 

### 55 ofthe Federal Rules ofCivil Procedure, herebymoves for an Order deeming admitted the allegations in the Complaint dated February 17, 2012, and requests that the Administrative Law Judge enter a Judgment by Default in favor ofthe Complainant. In support ofhis motion, Complainant states the following: 1. On orabout April9, 2012, theAdministrative Law Judge issued an OrderSettingRule 16 Litigation Scheduling Conference and Directing Rule 26(f) Planning and Submission. By Order the Scheduling Conference was set for June 5, 2012 at 11

### :OOam. Inresponse to the ALJ's April 9, 2012 Order on or about April 13, 2012, the Complainant filed its Motion for Continuance of the Rule 16 Litigation Conference and stated that prior to the setting ofthe Conference by the ALJ, shehad scheduled a pre-paidvacation fortheweek ofJune 4-8, 2012.



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### On May 25, 2012, the AU issued her Order Granting FAA's Motion for Continuance of CR 16 Conference and Granting/Denying Other Relief. In 

### the May 25, 2012 Order the ALJ noted that as ofthe date ofthe Orderthe Respondent had failed to object orrespond to the FAA's Motion for Continuance. The ALJ scheduled a Second CR 16 Conference for June 18, 2012 at ll:OOam. 

### On June 18, 2012, the Respondent failed to appear, despite the Office of Hearings' clerical staffattempts to contact the Respondent at both his telephone number ofrecord and at an alternate cell phone number. During the conference, Counsel for the FAA indicated that it had been in recent contact with Respondent and that the parties were discussing settlement. As a result, the FAA requested additional time to pursue settlement discussions. As a result, on June 18, 2012, the ALJ issued her Order Granting Continuance, Setting Second CR 16 Litigation Scheduling Conference, and Granting/Denying Other Relief. In 

### the Order the AU granted the FAA's request to continue the CR 16 Litigation Scheduling Conference, set deadlines for written submissions of the Joint Rule 26(f) Proposed Scheduling/Discovery Plan, and scheduled a second CR 16 Litigation Scheduling Telephone Conference for Tuesday, July 10, 2012 at 9:30am. 

### Additionally, the pro se Respondent was ordered to immediatelycontact C. DianeMays at the Office ofHearings and to provide a working telephone numberfor the July 10,2012 CR 16 conference and for any/all future contact. On July 10, 2012, the parties were contacted by the Office ofHearings to convene by telephone for the Second Rule 16 Litigation Scheduling Conference. The FAA appeared and participated in the Conference. However, the pro se Respondent did not appear, and there was no explanation for his absence. The FAA also indicated that the settlement discussions with Respondent were not successful. The ALJ 

### noted that as ofJuly 10, 2012, the Respondent had

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failed to contact the Office ofHearings and provide a working telephone number ofrecord. As a result, the ALJ issued an Order Setting Default Motion Deadlines and Granting/Denying Other Relief. The ALJ established that the Complainant FAAmay file a Motion to Deem Allegations Admitted and for DefaultJudgment onorbefore July 31, 2012.



### 2. Section 13.209(a) oftheRules ofPracticerequires a respondentto file awritten answer to the complaint, orfile a written motionpursuant to §13.208(d) or §13.218(f)(l-4) instead offiling

an answer, not laterthan 30 days after service ofthe complaint. The complaint, which contained a paragraph informing Respondent he was required to file a written answer not later than 30 days after the date shown on.the certificate ofservice, was filed on February 17, 2012. 1 As ofthis date, Complainant has not received a written answer. Therefore, Respondent has not met the filing deadline pursuantto Section 13.209(a). 

### 3. The 30-day deadline for filing an answer cannot be extended without a showing ofgood

cause. fu the Matter ofRobinson, FAA Order No. 95-28 (1997). "A showing ofgood cause is mandatory. Without it, failure to file an answer by the deadline may not be excused." fu the Matter ofAtlantic World Airways, fuc., FAA OrderNo. 95-28 (1995). Moreover, Rule 13.209(f) states that failure to file an answer without good cause shall be deemed an admission ofthe truth ofeach allegation contained inthe complaint. 

### See,**e~g.,** fu the Matter ofLarry's Flying Services, Inc., FAA Order No. 98-4 (1998). Since Respondent has not filed an answer and has not shown



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### good cause for its failure to file an answer, the allegations in the complaint should be deemed admitted. 

### 4. Additionally, Rule 55 of the Federal Rules of Civil Procedure establishes that a court may, upon motion ofa party, enter a default against a party who has failed to plead or otherwise defend. In 

### the instant case, the Respondent has failed to appear by making a presentation or submission to the court, i.e. failed to serve any responsive pleading or attend the Rule 16 Scheduling Conferences. Byreason ofthe foregoing, the Complainant respectfullyrequests thatthe Administrative Law Judge enter a Judgment byDefault in favor ofthe Complainant on the basis that the record in this case demonstrates that there has been a failure to plead or otherwise defend as providedby Rule 55(a) ofthe Federal Rules ofCivil Procedure. See Attachment 1, Affidavit in Support of Motion for Default Judgment datedJuly27,2012. 

### 5. As the allegations are deemed admitted and the Respondent has failed to plead or otherwise defend this action, there remain no genuine issues ofmaterial fact. The Administrator has previously held that an order assessing civil penalty shall be assessed when the respondent has failed to answer the complaint without showing good cause. FAA vs. Playter, FAA Order No. 90-0015 (1990), 

### ajf'd, 933 F.2d 1009 (6th 

### Cir. 1991). Thus, the only remaining issue is sanction.

1PLEASE NOTE: Pursuant to Title 14 CFR Section 13.209(a), you are required to file a written answefto this Complaint, or a written Motion to Dismiss if appropriate, not later than 30 days after the date shown on th Certificate ofService which follows. Seepage 7ofExhibit 1. e 

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### 6. The complaint charged Respondent with violations Sections 121.317(g), (h) and (i) ofthe Federal Aviation Regulations (FAR) (Title 14 ofthe Code ofFederal Regulations), for smoking in the lavatory ofAirTran Flight 1422 from Indianapolis, Indianato Tampa, Florida on or about June, 4, 2011. During the course ofthe flight, no-smoking signs were illuminated and posted on the aircraft and in the lavatory. While in the lavatory Respondent tampered with the smoke detector. In accordance with Sections 46301(a)(1)(A) and (B) of Title 49 of the United States Code (Transportation) (49 U.S.C. §46301(a)(1)(A) and (B)), Respondent is liable for a civil penalty not to exceed $1,100 for each ofthe violations ofthe FARs. Violations ofFederal Aviation Regulations 14 C.F.R. §121.317(g) and (h) fall under 49 U.S.C. §46301(a)(1)(A) and (B). 

### Moreover, in accordance with Section 46301(b) of Title 49 of the United States Code (Transportation) (49 U.S.C. §46301(b)), Respondent is liable for a civil penalty not to exceed $2,200 for tampering with the smoke detector? Violations ofFederal Aviation Regulation 14 C.F.R. §121.317(i) falls under49 U.S.C. §46301(b). On October 1, 2007, The FAA published its Compliance and Enforcement Program Policy, Order 2150.3B which describes the authority, responsibilities, policies, guidelines, procedures, objectives, and legal aspects ofthe Federal Aviation Administration's compliance and enforcement program. The policies and procedures described within the Order explain how the FAA generally intends to exercise its discretion in carrying out statutory and regulatory enforcement responsibilities. The sanction guidance contained within the Order 2150.3B was revised to conform to the statutory maximum civil penalty amounts under Vision I00-Century

2 Revisions to the civil penalty Inflation Adjustment Rule and Tables were published in the Federal Register on Tuesday, May 16, 2006 (Fed. Reg. Vol. 71, No. 94) where the maximumcivil monetary penalty amounts for certain violations was adjusted. Violations of49 U.S.C. 46301(b) Tampering with a smoke alarm devise adjusted to $2,200. 

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### ofAviation Reauthorization Act. Public Law 108-176-DEC. 12,2003. To that end the FAA 2150.3B establishes separate civil penalties for violations ofthe Federal Aviation Regulations, including, §§121.317(g), (h), and (i) for smoking while no. smoking sign is lighted, smoking in aircraft lavatory, and tampering with smoke detector. See Attachment 2, Appendix B, FAA Order 2150.3B, p. B-29. The FAA Order 2150.3B sanction guideline establishes inAppendix B, Figure B-3-q sanction amounts for specific passenger violations of the Federal Aviation Regulations. The sanction guidance specifies MAXIMUM civil penalties for smoking while a No Smoking Sign is lighted and Smoking in the aircraft lavatory. The guidance further establishes a civil penaltybetween $1,800 to $2,200 for tampering with a smoke detector under 49 U.S.C. §46301(b).3 

### As a result, in the instant case, the Complainant is seeking $1,000 civil penalties each for violations of 14 C.F.R.. §121.317(g) and (h); and $2,200 for violation of 14 C.F.R. §121.317(i). The total civil penalty sought in this matter is $4,200. By reason ofthe policies established in the FAA 2150.3B, the sanction sought in this matter is within the range specified inthe FAA'swrittenpublicly available sanction guidance. The FAA established in its Order 2150.3B that the civilpenalty sought in cases involving unruly passengers consider not onlythe individual unruly acts committed, but also the collective consequences ofall the unrulybehavior. As aresult, the sanction determination for cases such as these is the result of considering the seriousness of the conduct, given the totality of the circumstances, to determine an appropriate sanction amount that will deter future violations by the unruly passenger and others similarly situated. See Attachment 3, FAA Order 2150.3B at Chapter 7, Paragraph 13(f).

3 See Fig. B-3-q (1) Smoking while No smoking signis lighted; (2) smoking in aircraftlavatory; and (3) Tampering with smoke detectorunder 49 U.S.C. §46301(b). 

### 6Byreason ofthe foregoing, the Complainant seeks deference to its sanction guidance and affirmation ofthe sanction sought inthis matter. WHEREFORE, Complainantrespectfullyrequests that its Motionto Deem Allegations Admitted be granted and Complainant further prays that the Administrative Law Judge enter ajudgment of default againstRespondent and assess Respondent a civilpenaltyinthe amount of$4,200.

Respectfully submittedthis 27th day ofJuly2012.

# ~~;f;EO~(f Attorney Office ofthe Regional Counsel



### 7CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion To Deem Allegations Admitted and for DefaultJudgment was mailedbyfacsimile andFederalExpress to: TheHonorable J.E. Sullivan DOT, AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200New JerseyAvenue, S.E. EastBuilding GroundFloor Room E12-320 Washington, D.C. 20590 (FAX) (202) 366-7536 andFederal Express andregularmail to: Rian C. Seeman 12433 Pineneedle Drive Indianapolis, IN 46236-3160 and the original and one copyviaFederalExpressto: HearingDocket U.S. Department ofTransportation Docket Operations, M-30 WestBuilding GroundFloor RoomW12-140 1200New JerseyAvenue, S.E. Washington, D.C. 20590

Dated



### 8U.S. DEPARTMENT OFTRANSPORTATION OFFICE OFHEARINGS

WASHINGTON, D.C.

IN THE MATTER OF: RIAN C. SEEMAN. Respondent. FAADocketNo. FAA-2012-0198 Judge J.E. Sullivan FAACASENO. 2011S0370103 AFFIDAVIT IN SUPPORT OFMOTION FORDEFAULTJUDGMENT I, Rashawn Rich George, being duly sworn, state as follows: 1. I am the attorney for the Complainant in the above-entitled matter and I am familiar with the file, records, and pleadings inthis matter. 2. The complaintwas filed withthe Office ofHearings onFebruary 17, 2012. 3. The Respondent was served with a copy ofthe complaint on February 17, 2012, as is reflected onthe certificate ofservice attached to the complaint. 4. An answer to the complaintwas due onMarch 19, 2012. 5. Respondent has failed to appear, plead, or otherwise defend within the time allowed and, therefore, is now indefault. 6. Complainant requests that the Administrative Law Judge enter default against the Respondent.

wnRich George Attorneyfor Complainant

## •. ' • 10/01/07 2150.38 Fig. B-3-p. Unruly passengers cont. Civil Penalty Certificate Action (6) Acts in a manner that poses imminent threat to safety of · $5,000- $25,000 aircraft or other individuals on aircraft under 49 U.S.C § ($5,000- $27,500 for 46318 violations after 6/15/2006) Fig. B-3-q. Other Violations by Passengers Civil Penalty Certificate Action ( 1) Smoking while No Smoking sign is lighted Maximum (2) Smoking in aircraft lavatory Maximum (3) Tampering with smoke detector $1,800 to under 49 U.S.C § 46301(b) $2,200 (4) Failure to fasten seat belt while seat belt sign is lighted Minimum to Moderate (5) Failure to occupy an approved seat or berth with a safety Minimum to Moderate belt, and, ifinstalled, shoulder harness properly secured during movement on the surface, takeoff, or landing (6) Operating a portable electronic device Maximum (7) Drinking alcoholic beverage not served by carrier Maximum 4. DUI/DWI PROGRAM, FALSIFICATION OF DRUG CONVICTIONS AND AIRMAN MEDICAL CERTIFICATE VIOLATIONS Fig. B-4-a. Sanctions related to DUI/DWI Program Civil Penalty Certificate Action (I) Intentionally false or fraudulent entry on medical Revocation certificate application regarding a DUI conviction or ofall airman administrative action under 14 C.F.R. § 67.403(a)( 1) and medical certificates (2) Making an incorrect statement on a medical certificate Indefinite application regarding a DUI conviction or administrative Suspension actionunder (pending 14 C.F.K § 67.403(c)(l) correction of application and determination of qualification) or Revocation ofmedical certificate (3) Failure to report a motor vehicle action (MV A) under 14 15- to 45-day C.F.R. § 6l.l5(e) Suspension ofall part 61 certificates (4) Two MVAs arising from separate incidents within 3 years, 90- to 120- and reported both under day 14 C.F.R. § 6l.l5(d) Suspension ofall part 61 certificates B-29,,

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05/13/11 2150.38 Chg 3 e. Applicable Sanction Ranges for Security OfficersorOthersAssigned a Law Enforcement Function on a Flight (for example,FederalAirMarshals Assigned to the Flight). FAA enforcementpers01mel apply the sanctionrange applicable tophysical assaults or threatenedphysical assaults on crewmembers (Appendix B, part II, Figure B-3-p). f. ApplyingUnruly Passenger Sanction Guidance Tables to Multiple Acts. When applying the table to multiple acts by an unruly passenger, FAA enforcementpersonnel consider not only the individualunruly acts committed, but alsothe collective consequences of all the unruly behavior. FAA enforcementpersonnel do not approach the sanction determination for multiple acts as amechanical exercise ofmultiplying the number ofseparate acts ofunruly behaviorby a sanction amount in the range for asingle act. Instead, they use the guidance inthe table and exercise theirjudgment as to the serio'ilsness ofthe conduct, given the totality of circumstances, to determine an appropriate sanction amount that will deterfuture violations by the unruly passenger and others similarly situated.

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