^ 

UNITED STATES OF AMERICA 'I't-.^^B'^MEMJ Of 

DEPARTMENT OF TRANSPORTATION A'''-'^^SPORTAT!ON 

OFFICE OF HEARINGS •^^^KtT OPERATIONS 

IN THE MATTER OF: 

BRIAN WALLAESA 

?oii m\' ~1 p 

FAA Docket No. 

CPIOWPOOIO 

FDMS No. 

FAA-2010-0628 

I- 32 

Tuesday, 

October 18, 2011 

The above-entitled matter came on 

for hearing via teleconference, pursuant to 

notice, at 3:00 p.m. 

BEFORE: 

THE HONORABLE RONNIE A. YODER, 

Chief Administrative Law Judge 

REC 

HEARING DOCKET 

(202) 234-4433 

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1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, DC. 20005-3701 www.nealrgross.cofn 
APPEARANCES: 

On Behalf of the Respondent: 

BRIAN WALLAESA, pro se 

11272 Wortham Crest Circle 

Manassas, VA 20109 

(570) 778-1335 

On Behalf of the Complainant: 

JOHN C. STUART, JR., ESQ. 

Attorney 

Office of the Chief Counsel 

Enforcement Division, AGC-300 

of: Federal Aviation Administration 

800 Independence Ave SW 

Washington, DC 20591 

(202) 267-9958 

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1 P-R-0-C-E-E-D-I-N-G-S 

2 2:59 p.m. 

3 JUDGE YODER: This is a pre4 hearing telephone conference in the matter of 

5 Brian Wallaesa, Wallaesa, is that right? 

6 MR. WALLAESA: Wallaesa is the 

7 correct name, sir. 

8 JUDGE YODER: I'll try to get it 

9 right. 

10 MR. WALLAESA; That's okay. 

11 JUDGE YODER: Okay. FAA Docket 

12 CPIOWPOOIO, FDMS No. FAA-2010-062 8. 

13 On the phone we have for the 

14 Complainant, John C. Stuart, Jr. , and we have 

15 the Respondent, Brian Wallaesa, appearing pro 

16 se. 

17 We also have a court reporter who 

18 will transcribe the proceeding. A copy of the 

19 transcript automatically goes to the Judge and 

20 to the FAA, which pays for the transcript. If 

21 you need a copy, Mr. Wallaesa, you'll need to 

22 arrange that with the court reporter. 

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1 After a period of time, it will be 

2 available in the public docket, and you can 

3 get it from the docket, but I can't tell you 

4 just how long that will be. I think it's 

5 supposed to be within 48 hours or so after it 

6 is prepared by the reporter. We normally get 

7 either five or ten-day transcript, which is 

8 working days. And, I' m not sure which is 

9 being applied here. 

10 For the reporter's information, we 

11 expect you to keep control of the record, and 

12 if there are any questions that arise, you 

13 don't understand any words, you stop and ask 

14 SO we wind up with a transcript that's 

15 correct. 

16 Are we clear on that? 

17 COURT REPORTER: Yes, Your Honor. 

18 JUDGE YODER: Okay, f ine. All 

19 right, let's proceed. 

2 0 Mr. Wallaesa, let me just clarify 

21 one question. I want to make sure, you are 

22 not an attorney, is that correct? 

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1 MR. WALLAESA: No, I am not. 

2 JUDGE YODER: Okay. Now I have 

3 some questions for the Complainant. 

4 I guess the most recent thing we 

5 received from the Complainant was a motion for 

6 a hearing date. You filed that? 

7 MR. STUART: Yes, Your Honor. 

8 That was filed on July 8th. 

9 JUDGE YODER: That was filed by 

10 you, Mr. Stuart? 

11 MR. STUART: That's correct. 

12 JUDGE YODER: Did you know you 

13 filed it for the Administrator? 

14 MR. STUART: I see that. Your 

15 Honor. 

16 JUDGE YODER: Do you know that you 

17 don't represent the Administrator? 

18 MR. STUART: Yes, Your Honor. 

19 JUDGE YODER: Okay. You know that 

2 0 you filed it in a case called Babbitt v. 

21 Wallaesa? 

22 MR. STUART: Okay. I see that. 

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1 JUDGE YODER: You know there is no 

2 such case. You filed a motion for a non-party 

3 in a case that doesn't exist. 

4 MR. STUART: Yes, I see it. Yes, 

5 Your Honor, I see. 

6 JUDGE YODER: Okay. In any event, 

7 that motion has been overtaken by 

8 circumstances, but it is important that the 

9 people who appear in these proceedings 

10 understand who they are and who they 

11 represent. 

12 Mr. Wallaesa, for your benefit, 

13 the Complainant here is a section of the FAA. 

14 It is not the Administrator. The 

15 Administrator is, in fact, the person who 

16 reviews the decision of the ALJ, if there is 

17 any review, and he is the final decision maker 

18 in the case. 

19 Now, part of the reason for the 

20 confusion that Counsel has just reflected is 

21 that in some cases Mr. Stuart does represent 

22 the Administrator. When he goes to the NTSB, 

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1 it's a complaint filed by the Administrator 

2 against the respondent. And, Mr. Stuart would 

3 represent the Administrator in that case. 

4 In the civil penalty proceedings, 

5 however, he doesn't represent the 

6 Administrator. The Administrator is the 

7 ultimate decision maker. 

8 I'm just trying to keep you up 

9 with what the procedural conversation is 

10 about. Okay? 

11 MR. WALLAESA: I thank you. I do 

12 believe, though, I did make a correction on 

13 that point. 

14 JUDGE YODER: Okay. I don't know 

15 what you mean by making a correction. 

16 MR. WALLAESA: I submitted my 

17 documentation that I submitted, roughly, 

18 almost a year go, November, November of last 

19 year. I filed several documents in a packet, 

2 0 and one was that you were the Complainant 

21 instead of the Administrator in the case. 

22 JUDGE YODER: Well, let's see, I'm 

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1 looking for that filing. Was that your 

2 December 20 filing? 

3 MR. WALLAESA: I believe so -- no, 

it would have been earlier than that. It 

would have been early November. 

Your Honor, I see that Mr. 

Wallaesa filed on November 15, 2010, several 

documents, including six. One was a motion to 

9 dismiss complaint filed July 28th. The second 

10 was an objection to the motion for protective 

11 order, I'm not sure if that' s the one he's 

12 referring to. 

13 JUDGE YODER: It really doesn't 

14 matter, Mr. Wallaesa, but if you find a 

15 reference to the document you are talking 

16 about if you can supply that for us. 

17 MR. WALLAESA: I will . I 

18 apologize for not having it ready. 

19 JUDGE YODER: All right. Now, 

20 let's see. Let's take a look at the 

21 violations alleged in the complaint, Mr, 

22 Stuart . 

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I gather there is a violation 

alleged for failure to fasten a seat belt, is 

that correct? 

MR. STUART: That's correct. 

JUDGE YODER: Is there a factual 

allegation in the complaint that he failed to 

fasten the seat belt? 

MR. STUART: Yes, Your Honor, it's 

Paragraph 4 under Section 2. 

JUDGE YODER: Just a moment 

Where does it say he failed to fasten the seat 

belt? 

MR. STUART: Paragraph 4 says, 

"During the flight, when the seat belt sign 

was eliminated, the Respondent was asked 

several times b y cre w members to take his 

seat, but he refused." 

JUDGE YODER: I see that . My 

question was, where does it allege that he 

failed to fasten the seat belt? 

MR. STUART: Well, Your Honor, I 

would say it would be contained within 

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1 Paragraph 4. 

2 JUDGE YODER: I would j ust 

3 suggest, sir, that when you are drawing 

4 conclusions based on allegations in the 

5 complaint, you need to allege what you are 

6 proposing to conclude. It never says that he 

7 failed to fasten his seat belt. It says he 

8 refused to take his seat. 

9 MR. STUART: I understand, Your 

10 Honor. 

11 JUDGE YODER: All right. 

12 MR. STUART: I made my entry 

13 appearance in this case on November 10, 2010, 

14 and I did not file this complaint. It was 

15 filed previously. 

16 JUDGE YODER: Okay. Then you sa y 

17 that he failed to comply with a direction to 

19 take his seat. That's the only direction that 

19 - - this is the only paragraph that alleges 

20 anything about failing to take his seat, is 

21 that correct? 

22 MR. STUART: The preceding 

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1 paragraph, 3, states, "During the passenger 

2 briefing prior to the flight, the passengers 

3 were advised of the regulations requiring them 

4 to comply with the crew member instructions 

5 during the flight." 

6 JUDGE YODER: I understand that. 

7 Is Paragraph 4 the only paragraph in the 

8 complaint that refers to his being directed by 

9 a crew member to do anything? 

10 MR. STUART: Yes, Your Honor. 

11 JUDGE YODER: There are no other 

12 facts alleged in the complaint with respect to 

13 failure to comply with instructions. 

14 MR. STUART: It doesn't appear 

15 that way. 

16 JUDGE YODER: Can you tell me how 

17 you propose to prove these two portions of the 

18 complaint? That is, the failure to fasten 

19 seat belt, and failure to follow instructions. 

2 0 MR. STUART: Yes, Your Honor. We 

21 have witnesses from the flight, the flight 

22 attendants, who will testify that, or are 

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1 expected to testify, that the passengers were 

2 notified of the regulations, including the 

3 requirement to fasten the seat belt when the 

4 seat belt sign is on. And, in Paragraph 4, we 

5 have alleged that Respondent was asked several 

6 times to take his seat, but he refused. That 

occurred while the seat belt sign was 

fastened. So, within 4, he was not in his 

seat with his seat belt fastened. 

10 JUDGE YODER: Okay. And, what 

11 crew members do you have in mind testifying 

12 with respect to those two matters? 

13 MR. STUART: There are two flight 

14 attendants. One is named Wendy Moorman, and 

15 the second is named Robert Dumond. 

16 JUDGE YODER: Okay. You mentioned 

17 a number of witnesses in your statement of 

18 witnesses that you propose to call. Are these 

19 the only two witnesses you propose to call? 

20 MR. STUART: We intend to call 

21 those two witnesses. Your Honor. Then James 

22 Mollica, who was an off-duty U.S. Marshall who 

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1 was on the flight. 

2 The Complainant does not intend to 

3 call Ms. Penny Green. We do not intend to 

4 call her. 

5 JUDGE YODER: Okay. 

6 MR. STUART: But, we did intend to 

call the other four who are listed in the 

witness list and summary of testimony. 

JUDGE YODER: Does that include 

10 the woman who is the subject of the protective 

11 motion? 

12 MR. STUART: Yes, Your Honor. 

13 JUDGE YODER: Do you propose to 

14 call her as a witness without naming her? 

15 MR. STUART: On that point, the 

16 Complainant does have an outstanding motion of 

17 protective order, based on, you know, the 

18 conduct that occurred on the aircraft. 

19 JUDGE YODER: That was the reason 

20 for my question. Do you propose to call that 

21 person without naming her? 

22 MR. STUART: No, Your Honor. We 

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would name her, and now I've been made aware 

that Mr. Wallaesa knows her name. So, it 

3 might be a moot issue, but I know that the 

4 passenger does not want any other information 

5 released, any othe r of her personal 

6 information released. 

MR. WALLAESA: Your Honor, may I 

speak on this matter? 

JUDGE YODER: Let's find out what 

10 he's saying first. 

11 What other information do you have 

12 in mind? 

13 MR. STUART: Such as her address, 

14 or anything that might be discoverable by Mr. 

15 Wallaesa in the course of preparing for the 

16 hearing. 

17 JUDGE YODER: Well, if you present 

18 her for -- as a witness, you are going to --

19 she's going to be subject to cross 

2 0 examination. 

21 MR. STUART: Yes. 

22 JUDGE YODER: Do you have in mind 

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that she wouldn't be subject to cross 

examination? 

MR. STUART: No, Your Honor. We 

are just interested in protecting her personal 

address, and her contact information. 

JUDGE YODER: And, you don't 

propose to ask her address when you identify 

her as a witness? 

MR. STUART: Well, given the 

circumstances of the case, she has requested 

that Mr. Wallaesa not know her personal 

address or any other information. So --

JUDGE YODER: Mr. Stuart, I didn't 

ask you what she's requested. 

MR. WALLAESA: Your Honor, may I 

speak? 

JUDGE YODER: I'm asking what you 

propose to do in presenting your case. 

MR. STUART: If there was some way 

to keep her address private. 

JUDGE YODER: Mr. Stuart, i f 

there's going to be a proposal in that regard, 

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1 it's going to come from you. And, so far you 

2 have filed a motion for protective order, the 

3 styled motion by the Administrator, who, of 

4 course, can't file anything in these 

5 proceedings. And, of course, you don't 

6 represent him. 

7 And, that motion refers to 

8 sexually explicit comments. Are those in 

9 either of the statements that you submitted 

10 with the motion? 

11 MR. STUART: I believe so, Your 

12 Honor. 

13 JUDGE YODER: Do you want to point 

14 that out to me? 

15 MR. STUART: One moment. 

16 MR. WALLAESA: Your Honor, may I 

17 speak on this matter? 

18 JUDGE YODER: Well, why don't you 

19 just wait a moment, Mr. Wallaesa. We are 

20 going to get around to you. 

21 MR. WALLAESA: No problem. I 

22 already have the address. 

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address. 

JUDGE YODER: You already have the 

MR. WALLAESA: Yes. I already 

have her name, address, phone number. 

JUDGE YODER: Okay. Did you hear 

that, Mr. Stuart? 

MR. STUART: I did, Your Honor. 

Then this seems to be a moot issue then, with 

the protective order that is. 

MR. WALLAESA: There was also a 

criminal trial and through discovery in the 

criminal trial that information was released. 

JUDGE YODER: I'm sorry, you mean, 

there was a criminal proceeding with respect 

to this case, with respect to the facts 

involved in this case? 

MR. WALLAESA: Yes. 

JUDGE YODER: Were you aware of 

that, Mr. Stuart? 

MR. STUART: Yes, Your Honor. It 

wasn't quite the same facts. They were 

different legal allegations. They were 

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1 different, you know, different statutes here. 

2 In our case, we are alleging 

3 separate charges. 

4 JUDGE YODER: I'm sure of that, 

5 Mr. Stuart. 

6 You don't think that any of the 

7 facts that came up in that criminal proceeding 

8 might be relevant in this case? 

9 MR. STUART: No, Your Honor. I 

10 think that the facts would be relevant, to 

11 some extent. 

12 JUDGE YODER: I see, but you 

13 didn't think you needed to tell us about that? 

14 MR. STUART: Well, I certainly 

15 would have gotten to it. 

16 JUDGE YODER: Mr. Stuart, let's be 

17 clear. If this is going to a hearing, you 

18 will provide for the record the entire record 

19 from the other proceeding. Do you understand? 

2 0 MR. STUART: By that you mean 

21 transcripts or --

22 JUDGE YODER: I mean the entire 

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record of the proceeding. You know what a 

record is. 

of that. 

MR. STUART: Yes. I wasn't aware 

JUDGE YODER: Did you ever certify 

a record for an appeal? 

MR. STUART: Can you say that 

again. Your Honor? 

JUDGE YODER: Have you ever 

certified a record for appeal? 

MR. STUART: I don't know that I 

have. 

JUDGE YODER: Okay. Well, 

basically, it's the same kind of thing. You 

need to provide me with every scrap of paper 

that was involved in that proceeding. 

Now are we clear? 

MR. STUART: Yes, Your Honor. 

JUDGE YODER: Okay. Do you know 

how that proceeding came out. 

MR. STUART: No. 

JUDGE YODER: It' s a public 

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1 proceeding, right? 

2 MR. STUART: Yes. I believe he 

3 was acquitted on the charges. 

4 JUDGE YODER; What were the 

5 charges? 

6 MR. STUART: The charges were 

7 interfering with a flight crew member, and it 

8 was 49 use 46504 was charged, and then 18 USC 

9 1114, assault, resisting or impeding certain 

10 officers, was also charged. 

11 JUDGE YODER: I see. Was there a 

12 written decision in the case? 

13 MR. STUART: I'm not -- I'm not 

14 sure. Your Honor. 

15 JUDGE YODER: Was it a jury trial? 

16 MR. STUART: It was a jury trial. 

17 JUDGE YODER: Okay. All right. 

18 When was that begun? 

19 MR. STUART: That was in December, 

20 1 believe mid December of 2010. 

21 JUDGE YODER: When did it end? 

22 MR. STUART: It was -- I think it 

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1 was a two day, two or three day trial. 

2 JUDGE YODER: You mean it started 

3 in December and was tried within two days? 

4 MR. STUART: I believe it was 

tried within a week at the most, 

JUDGE YODER: Within a week after 

the complaint was filed? 

MR. WALLAESA: No. 

9 MR. STUART: There was a separate 

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11 JUDGE YODER: I asked you when the 

12 proceeding began. 

13 MR. STUART: -- I'm --

14 JUDGE YODER: Not when the trial 

15 began, when did the proceeding begin? 

16 MR. STUART: Do you mean the 

17 criminal proceeding or the --

18 JUDGE YODER: Yes, sir, that's 

19 what I mean. 

2 0 MR. STUART: I'm not -- I'm not 

21 exactly sure. Your Honor. 

2 2 JUDGE YODER: I see. But, you 

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1 think it ended in December. 

2 MR. STUART: Yes. 

3 JUDGE YODER: Mr. Wallaesa, do you 

4 want to weigh in here at all? Can you help 

5 us? 

6 MR. WALLAESA: December 13th is 

7 when it ended. I have the documentation in 

8 front of me right here. 

9 JUDGE YODER: Do you know when it 

10 started? 

11 MR. WALLAESA: It started on the 

12 11th. 

13 JUDGE YODER: No. When did the 

14 proceeding begin? Was there an indictment? 

15 MR. WALLAESA: Are you talking 

16 about the pre-trial, the first pre-trial 

17 hearing? 

18 JUDGE YODER: When did that 

19 proceeding first begin? When did it start? 

20 MR. WALLAESA: The exact trial --

21 JUDGE YODER: No, not the trial, 

22 when did the proceeding start? When did you 

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first hear of that? 

MR. WALLAESA: The 15th of 

November of 2009. 

4 JUDGE YODER: Okay, November 15th, 

5 2009. And, how did you hear of it? 

6 MR. WALLAESA: It was -- I was 

7 arraigned in Las Vegas at that time. 

8 JUDGE YODER: Okay. Now, Mr, 

9 Stuart, your motion for protective order also 

10 : relies on 13.22 0 of 14 CFR? 

11 MR. STUART: 13.220? 

12 JUDGE YODER: Yes, sir. 

13 MR. STUART: Yes. 

14 JUDGE YODER: You did file that 

15 motion, Mr. Stuart, is that correct? 

16 MR. STUART: Yes, Your Honor, sure 

17 did. 

18 JUDGE YODER: Paragraph 5? 

19 MR. STUART: Yes. 

2 0 JUDGE YODER: Do you know that 

21 that section provides that a person who has 

22 receive d a request fo r discover y may fil e a 

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1 motion for protective order? 

2 MR. STUART: Yes, I see that. 

3 JUDGE YODER: Did anyone file a 

4 request for discovery here? Correction, did 

5 Mr. Wallaesa file a request for discovery 

6 here? 

7 MR. STUART: He had previously 

filed a discovery schedule. 

9 JUDGE YODER: Did he file a 

10 request for discovery? 

11 MR. STUART: But, no, not a 

12 request. Your Honor. 

13 JUDGE YODER: Okay. Let's look at 

14 the penalty aspect of this case. Can you tell 

15 me how the penalty was calculated? 

16 MR. STUART: Yes, Your Honor. 

17 Under our Statute, he's subject to a maximum 

18 penalty of $11,000, and the Complainant went 

19 out with a $5,500 civil penalty. 

20 JUDGE YODER: How many violations 

21 are you alleging? 

22 MR. STUART: Well, we are alleging 

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in the complaint three violations. Your Honor, 

the 14 CFR 121.580. 

JUDGE YODER: I see the complaint, 

Mr. Stuart, you don't have to read it back. 

There are three violations alleged? 

MR. STUART: There are three 

violations, yes. 

JUDGE YODER: And, a maximum of 

$1,100 for each, $11,000 for each? Or, are 

you saying it's a maximum of $11,000 for all 

three? 

MR. STUART: It's -- it would be a 

maximum of $11,000 for each violation. 

JUDGE YODER: Okay. Now, can you 

tell me how you calculated the penalty, 

proposed penalty? 

MR. STUART: Your Honor, given the 

maximum of $11,000, and again, I made my 

initial appearance after the sanction had been 

calculated. But - -

JUDGE YODER: That's not going to 

be answer at the hearing, Mr. Stuart. 

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MR. STUART: Right . Yes, Your 

Honor. 

We reference our sanction 

4 guidance, and we decided that that would be an 

5 appropriate penalty. 

6 JUDGE YODER: That's not going to 

7 be answer either, Mr. Stuart. You are going 

to have to tell me how you arrived at this 

9 penalty level. You are saying you just picked 

10 out a number out of the air because you had 

11 three penalties. Is that what you are saying? 

12 MR. STUART: No, Your Honor, we 

13 could have gone out with a much higher penalty 

14 than we did. 

15 JUDGE YODER: Mr. Stuart, I'm not 

16 asking you what you could have done. I'm 

17 asking you what you did, and if you don't know 

18 what you did then you need to have someone on 

19 the phone who does know. That's why we have 

20 pre-hearing conferences, to find out what is 

21 at issue. 

22 Do you understand? 

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1 MR. STUART: Yes, Your Honor. I 

2 know that we can go out with, you know, up to 

3 $11,000 under our sanction guidance and under 

4 the Statute. And --

5 JUDGE YODER: I don't know what 

6 you mean by what you just said, Mr. Stuart. 

7 There are three violations, $11,000 each. 

8 That would be $33,000. Are you telling me 

9 that you only have one violation^ or that you 

10 Can only go out for $11,000 on three 

11 violations, under your guidelines? 

12 MR. STUART: Your Honor, we --

13 there are three violations here, and each one 

14 We could have gone out for $11, 000 as a 

15 maximum. But, we used our discretion to 

16 arrive at the civil penalty, and --

17 JUDGE YODER: Mr. Stuart, relying 

18 On your discretion doesn't help me, when it 

19 Comes to telling me how you've calculated a 

20 penalty. I need to know how much of this 

21 penalty relates to each of the alleged 

22 violations. Can you tell me that? 

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1 No is an answer, if that' s your 

2 answer. It won't be a satisfactory answer at 

3 the hearing, if there is a hearing. But, if 

4 you don't know, say you don't know. 

5 MR. STUART: Well, Your Honor, I 

6 don't know other than we went out below the 

7 maximum, and I don't know that I can assign an 

8 amount to each violation. 

9 JUDGE YODER: Well, it may be that 

10 you can't right now, but you are going to need 

11 to, and you should be able to now. That's why 

12 we have the pre-hearing conference. 

13 Do you understand? 

14 MR. STUART: Yes. 

15 JUDGE YODER: All right. Now, did 

16 you do any research on precedents for this 

17 level of penalty? 

18 MR. STUART: Your Honor, I did 

19 look into some of the factual allegations, but 

2 0 not the --

21 JUDGE YODER: You know what I mean 

22 by precedents. 

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1 

2 

3 

4 

5 

6 

7 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

MR. STUART: -- yes. Your Honor. 

JUDGE YODER: That would be a 

previous proceeding of a similar nature, in 

which a civil penalty was assessed . Did you 

look at any previous proceedings? 

MR. STUART: Yes, Your Honor. I 

looked at, one, for example, would be FFA v 

David Stout. That was a case from 1998, and 

it involved similar violations. 

JUDGE YODER: What's the citation? 

MR. STUART: It's FAA Order No 

98-12. 

JUDGE YODER: Okay. All right. 

If this hearing -- if this goes to 

hearing, you will need to brief the composed 

level of civil penalty. Let me just alert you 

to three cases of which I am aware. Okay? 

MR. STUART: Yes. 

JUDGE YODER: There is Digenova, 

D-I-G-E-N-O-V-A, which is a 2007 case. It is 

CP07WP007. 

MR. STUART: Okay. 

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9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

JUDGE YODER: I have an FAA number 

in the FDMS system, and I have a WL number, if 

you -- is the FAA docket number good enough 

for you? 

MR. STUART: Yes, sir, that will 

be fine. 

JUDGE YODER: Okay. There is a 

Sarli case, S-A-R-L-I. That was a smoking 

case, with a penalty of $2,200, smoking in the 

lav. 

And then there was a Schwager 

case, S-C-H-W-A-G-E-R. That was an attempt to 

open a cockpit door, and that was a $5,000 

penalty. The Schwager case was CP06SW0010. 

Sarli was CP09AL0006. Okay? 

MR. STUART: Got it. 

JUDGE YODER: Okay. All right. 

Well, let's move on. 

Mr. Wallaesa. 

MR. WALLAESA: Yes, sir. 

JUDGE YODER: This is your chance. 

We had some trouble getting documents to you? 

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MR. WALLAESA: No. 

JUDGE YODER: I see in the file 

3 that there were three attempts made to deliver 

4 documents that weren't claimed. 

5 MR. WALLAESA: Through the FAA or 

6 through --

7 JUDGE YODER: Delivered to you, 

certified receipt requested. 

MR. WALLAESA: I'm not sure of 

10 that. I don't know if --

11 JUDGE YODER: Do you pick up your 

12 mail when it's sent to you certified? 

13 MR. WALLAESA: Yes, I do. 

14 JUDGE YODER: Did you provide Mr. 

15 Wallaesa with the information that you've 

16 provided me. Mr. Stuart? 

17 MR. STUART: The latest documents 

18 I sent to you. Your Honor? 

19 JUDGE YODER: No, all the 

20 documents you sent to me. 

21 MR. STUART: Yes, I've provided --

22 you asked for the discovery documents that I 

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1 had sent to Respondent, but had not sent to 

2 Your Honor, which -- so, yes. Respondent has 

3 received those. 

4 MR. WALLAESA: There were the last 

5 three documents, Your Honor, that were not 

6 included. You were not included on the 

7 recipient list, and I refused to enter any 

8 requests on those documents because you were 

9 not copied on the list. 

10 MR. STUART: Your Honor --

11 JUDGE YODER: What documents are 

12 you referring to, Mr. Wallaesa? 

13 MR. WALLAESA: You had sent an 

14 order out that any documentation must copy the 

15 FAA and myself, as a minimum, and any of the 

16 documentation. And, in the documentation over 

17 the summer from, I believe it is Mr. Stuart, 

18 no reference or anything was documented as you 

19 being a recipient on the documentation. 

20 They were also asking for 

21 information directly from me, without copying 

22 you on the documentation. 

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1 MR. STUART: Your Honor, Mr. 

2 Wallaesa wouldn't have known that if he hadn't 

opened the mail, or claimed the mail. 

I have returned from Mr. Wallaesa 

5 the motion for protective order, the letter 

6 from June 17th, the letter I sent dated June 

7 27th. 

JUDGE YODER: I have a November 15 

9 document that reflects non delivery, November 

10 15, 2010. Do you have that, Mr. Stuart? 

11 MR. STUART: Would that be - -

12 would that be the Complainant's -- the witness 

13 list and summary of testimony that we served 

14 on the Respondent? 

15 JUDGE YODER: If it has a November 

16 15 non-delivery certificate attached, it would 

17 be. The one I'm referring to is one that has 

18 a November 15, 2010 non-delivery certificate. 

19 MR. STUART: Okay. From that date, 

2 0 I have the witness list and summary of 

21 testimony that I originally sent to Mr. 

22 Wallaesa. And, I'm showing that he received 

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1 that. 

2 I have the green certified return 

3 receipt card that has been signed. 

4 JUDGE YODER: Dated November 15th? 

5 MR. STUART: November 15th. 

6 JUDGE YODER: Subsequent to then? 

7 Or, you have the one from November 15 th 

8 returned receipt signed? 

9 MR. STUART: The document from 

10 November 15th has a signed return receipt. It 

11 was that one that Your Honor was asking about. 

12 JUDGE YODER: Yes. How about the 

13 June 18 and June 28? 

14 MR. STUART: No, those were 

15 returned. 

16 JUDGE YODER: And, what did they 

17 relate to? 

18 MR. STUART: Those were the --

19 those were letters trying to finish the 

20 discovery process, in which I told Mr. 

21 Wallaesa that I had given him -- had already 

22 given him our discovery, that at that point he 

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1 had not served any discovery requests on me, 

2 and please let me know if he had any discovery 

3 requests of me. 

4 JUDGE YODER: What's the date of 

5 that letter? 

6 MR. STUART: June 17th was the 

7 first letter that I sent, and June 27th was 

8 the second letter. 

9 JUDGE YODER: Okay. Did he ever 

10 get those? 

11 MR. STUART: Not that I can tell, 

12 because I have the return envelopes here. 

13 They were listed as unclaimed. 

14 JUDGE YODER: Mr. Wallaesa, can 

15 you tell me why these were unclaimed? 

16 MR. WALLAESA: I'm not sure about 

17 the documents, Your Honor. All I know is that 

18 there were several attempts from, I believe it 

19 as Mr. Stuart, to contact me without copying 

20 Your Honor on the files and the documentation. 

21 JUDGE YODER: Mr. Wallaesa, these 

22 are envelopes that were sent to you that were 

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1 returned unopened. 

2 MR. WALLAESA: Yes. 

3 JUDGE YODER: How do you know 

4 whether they were sent to me or not? 

5 MR. • WALLAESA: That's what I'm 

6 saying, I don't know -- I don't know what we 

7 are talking about here. I don't know if I do 

8 have them or I don't have them. 

9 JUDGE YODER: Well, you know that 

10 you didn't receive some documents, because you 

11 didn't sign them off and pick them up, is that 

12 right? 

13 MR. WALLAESA: No, that' s not 

14 true. 

15 JUDGE YODER: I thought that's 

16 what you just said. 

17 MR. WALLAESA: No, no, no. 

18 JUDGE YODER: That he tried to get 

19 you to take some documents that had not been 

20 delivered to me. 

21 MR. WALLAESA: I said in the 

22 documentation I received, and I don't know if 

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1 it was from Mr. Stuart or not from Mr. Stuart, 

2 there was attempts to make communication with 

3 me outside of copying the judge, yourself, on 

4 the documentation. 

5 JUDGE YODER: Well, I don't know 

6 what you are referring, Mr. Wallaesa, but if 

7 you have such --if you have evidence of such 

8 attempts you need to let me have them. 

9 MR. STUART: Your Honor, I don't 

10 think he does, because I have all the returned 

11 envelopes. 

12 JUDGE YODER: I understand that. 

13 Mr. Wallaesa, I should mention 

14 that as the Respondent appearing pro se in 

15 this proceeding, you need to understand that 

16 while you aren't under oath things that you 

17 say do become part of the record in the 

18 proceeding. 

19 MR. WALLAESA: I fully understand, 

2 0 Your Honor. 

21 JUDGE YODER: And, consequently, 

22 things that you say can be used in the hearing 

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1 to question things you say at the hearing, or 

2 to contradict things you say at the hearing, 

3 or to suggest that things you say at the 

4 hearing aren't true, or that things you said 

5 before the hearing weren't true. 

6 Do you understand what I'm saying? 

7 MR. WALLAESA: Yes, Your Honor. 

8 JUDGE YODER: And, that puts you 

9 at something of a disadvantage, because if you 

10 are represented by an attorney then you don't 

11 face the possibility of making a knowingly 

12 false statement to a Federal official in the 

13 performance of his duties, which is, of 

14 course, itself a felony. 

15 Do you understand that? 

16 MR. WALLAESA: Yes, sir, Your 

17 Honor. 

18 JUDGE YODER: Okay. I just -- I 

19 give that little warning up front, because 

20 people appearing pro se don't necessarily 

21 understand what is involved when they get in 

22 a formal proceeding of this kind. And, I 

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1 notice, for instance, that you submitted what 

2 you styled as testimony, and sent it in to 

3 us. 

4 MR. WALLAESA: Yes, that was a 

5 mistake. 

6 JUDGE YODER: I'm sorry? 

7 MR. WALLAESA: I believe that was 

8 a mistake on my part, but go ahead, I'm sorry 

9 for interrupting. 

10 JUDGE YODER: Well, I don't know 

11 what you mean by a mistake. Why don' t you 

12 tell me what you mean. 

13 MR. WALLAESA: I may have 

14 misunderstood what was being asked for. 

15 JUDGE YODER: Well, I don't know 

16 that anybody asked you to submit testimony, 

17 but the fact is that you did submit something 

18 which you styled, "Testimony of Respondent." 

19 And, those facts are now in this proceeding. 

2 0 MR. WALLAESA: I understand. 

21 JUDGE YODER: And, they are 

22 statements that you have made in this 

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1 proceeding, which can be used in the 

2 proceeding in whatever way is appropriate. 

3 Do you understand what I'm saying? 

4 MR. WALLAESA: I do understand, 

5 Your Honor. 

6 JUDGE YODER: Okay. Well, you 

7 understand that when you get documents in this 

8 proceeding, it is not satisfactory to refuse 

9 to receive them. 

10 MR. WALLAESA: I do understand 

11 that. Your Honor. The only thing I can offer 

12 is that when information is delivered to me 

13 via mail, the postal official places the 

14 receipt or the document, whatever you called 

15 the little card, if I have something to pick 

16 up, between the frame of my door and my front 

17 door. And, my front door is exposed to the 

18 elements, and I could have lost one or two, 

19 and that's the only thing I can give. 

2 0 JUDGE YODER: Mr. Wallaesa, were 

21 you represented by counsel in your criminal 

22 trial? 

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MR. WALLAESA: Yes, I was. 

2 JUDGE YODER: But, you are not 

3 represented by counsel now. 

4 MR. WALLAESA: No, I am not. 

5 JUDGE YODER: And, you haven't 

6 been represented by counsel at any time in the 

7 course of this proceeding. 

MR. WALLAESA: No, I have not. 

9 JUDGE YODER: All right. Now, we 

10 had a number of things filed by you. One was 

11 to dismiss the complaint. 

12 MR. WALLAESA: Yes. 

13 JUDGE YODER: Because it was more 

14 than 2 0 days after the request for hearing. 

15 MR. WALLAESA: Yes. 

16 JUDGE YODER: And, in that motion 

17 you stated that the time period began on July 

18 14 and ended on July 24. 

19 MR. WALLAESA: Yes. 

20 JUDGE YODER: So, it was more than 

21 2 0 days. 

22 MR. WALLAESA: Uh-huh. 

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1 JUDGE YODER: You can't say uh2 huh, you've got to answer orally, we can't --

3 MR. WALLAESA: Yes, sir. Yes, 

Your Honor. 

JUDGE YODER: Okay. So, July 14 

to July 24 is 20 days? 

MR. WALLAESA: No, it is not, it 

is ten days. 

JUDGE YODER: Okay. So, that 

10 motion, I gather, is withdrawn. 

11 MR. WALLAESA: Yes, I'll withdraw 

12 that. That's a mistake on my part, and I 

13 apologize for that. 

14 JUDGE YODER: Okay. I just want 

15 to clear up all these outstanding things. 

16 Then you filed a motion for 

17 extension of time, and I think we already 

18 denied that, because you didn't need -- you 

19 didn't need the extension of time, because 

20 there wasn't any time period established. Is 

21 that right? 

MR. WALLAESA: That is correct. 

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1 JUDGE YODER: Now, the other case 

2 that you referred to in your motion for 

3 extension of time, was that the criminal 

4 proceeding that you just described? 

5 MR. WALLAESA: Yes, Your Honor. 

6 And, let me make a correction on that. 

7 JUDGE YODER: Yes. 

MR. WALLAESA: I gave you the 

wrong -- incorrect information on the dates, 

the date that I received the information. The 

correct dates are November 9, 2009 in the 

beginning, and the trial was December 13th 

through the 16th, 2010. 

JUDGE YODER: Okay. All right. 

Then we have the question of your filing your 

answer in this proceeding. And, my 

understanding is that you said you filed a 

late answer because you misunderstood my 

order. 

MR. WALLAESA: Are you speaking 

about the - -

JUDGE YODER: I'm talking about 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 \ 

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1 your answer to the complaint. 

2 MR. WALLAESA: Yes, in September 

3 of 2010? August or September of 2010. 

4 JUDGE YODER: Okay. That was 

5 received by us September 20, and dated 

6 September 17th. 

MR. WALLAESA: That probably would 

have been correct, yes. 

9 JUDGE YODER: So, you recognize 

10 that that answer was late . 

11 MR. WALLAESA: I did not believe 

12 it was late, Your Honor. 

13 JUDGE YODER: Oh. Do you still 

14 think my order said you could file it by that 

15 date? 

16 MR. WALLAESA: I'm sorry, sir? 

17 JUDGE YODER: Do you still think 

18 my order said you could file it by that date? 

19 MR. WALLAESA: Yes, I do. 

20 JUDGE YODER: Well, of course, my 

21 order didn't say that you could file by that 

22 date . The order, actually ^ specifically , 

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1 referred to filing it within 3 0 days after 

2 service. 

3 Do you have my order? 

4 MR. WALLAESA: Yes, I do. Hold on 

5 one second, Your Honor. 

6 JUDGE YODER: Look at page 1 of 

7 the order. 

MR. WALLAESA: I'm sorry, Your 

9 Honor. I have the response, but I'm not -- I 

10 don't see - -

11 JUDGE YODER: Well, that was an 

12 order served August 20, 2010. The first page 

13 of that order refers to the Rules of Practice 

14 and says that the rules provide that the 

15 Respondent must file a written answer within 

16 30 days after service of the complaint. 

17 MR. WALLAESA: Yes, sir. I was 

18 confused about the -- I'm sorry. Your Honor. 

19 JUDGE YODER: Now, page 2 says 

20 that on or before September 20 you had to file 

21 any amendment of the complaint or answer. 

22 MR. WALLAESA: Right, and I took 

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1 that as the filing date. 

2 JUDGE YODER: You took that wrong. 

3 Okay. I j ust wanted you to be clear. Your 

4 answer was late, and there's nothing ambiguous 

5 about the order. But, let's press on and see 

6 what we do with your answer. 

7 I'm going to hold a decision on 

8 whether your answer was late until we complete 

9 these pre-hearing discussions. 

10 Now, your answer, did you by 

11 chance read the regulations with respect to 

12 how you had to answer the complaint? 

13 MR. WALLAESA: If I can, if you'll 

14 allow me a second. Your Honor, I do have them 

15 in front of me. 

16 JUDGE YODER: What I meant was, 

17 did you read them at the time before you filed 

18 your answer? 

19 MR. WALLAESA: I'm sorry, sir? 

2 0 JUDGE YODER: What I meant was, 

21 did you read them at the time before you filed 

22 your answer ? 

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1 MR. WALLAESA: Yes, I did. 

2 JUDGE YODER: You did? 

3 MR. WALLAESA: Yes, I did. Your 

4 Honor. I read the regulations, and that's 

5 what made me believe -- I believe I did write 

6 that in my response. 

7 JUDGE YODER: Wei1, one of the 

provisions in the regulations is that you have 

9 to respond to each allegation in the 

10 complaint. And, one of the problems with your 

11 answer is that you didn't. 

12 What we are going to try to do is 

13 get your response to each of those 

14 allegations. What you've done is to repeat the 

15 first allegation, which, essentially, 

16 constitutes an admission of that allegation. 

17 Then the second paragraph says 

18 they were operating under Part 121 of the 

19 Federal Aviation Regulations. You didn't say 

20 anything about that allegation, so under the 

21 rules that effectively is an admission of that 

22 allegation . 

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1 Do you have any problem with that 

2 allegation? 

3 MR. WALLAESA: Yes, I do. 

4 JUDGE YODER: What's your problem? 

5 MR. WALLAESA: Which allegation 

6 was that, Your Honor. 

JUDGE YODER: "On the above 

occasion. Southwest Airlines Flight 3 04 9 was 

operating under Part 121 of the Federal 

10 Aviation Regulations." 

11 Do you have any problem with that 

12 allegation? 

13 MR. WALLAESA: I think I do. Your 

14 Honor, based on the research I had done. I do 

15 not have that in front of me. 

16 JUDGE YODER: You want to deny 

17 that allegation? 

18 MR. WALLAESA: Yes. 

19 JUDGE YODER: But, you didn' t do 

20 so. Do you understand what I'm saying? 

21 MR. WALLAESA: Yes, sir. Your 

22 Honor. 

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1 JUDGE YODER: Failing to do so 

2 means, in effect, you admitted it. 

3 Now, Paragraph 3 says, "During the 

4 passenger briefing prior to the flight, 

5 passengers were advised of the regulations 

6 requiring them to comply with crew member 

7 instructions during the flight." 

8 Do you agree with that allegation? 

9 MR. WALLAESA: Yes. 

10 JUDGE YODER: You do . Okay. 

11 Well, you didn't say anything about that, so, 

12 in essence, you would admit that allegation by 

13 failing to reply. And, you've admitted it 

14 today, so that takes care of Paragraph 3. 

15 Paragraph 4 says, "During the 

16 flight, when the seat belt sign was 

17 illuminated, the Respondent was asked several 

18 times by crew members to take his seat but he 

19 refused." 

20 Do you agree with that allegation? 

21 MR. WALLAESA: Yes, I'd have to 

agree, sir. 

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1 JUDGE YODER: Did you answer that 

2 allegation in your answer? 

3 MR. WALLAESA: Sorry? 

4 JUDGE YODER: You didn't answer 

5 that in your answer to the complaint, so 

6 failing to answer it would effectively mean 

7 you admitted that allegation. 

Is that true, were you asked 

several times to take your seat? Let's take 

10 it one piece at a time. Were you asked by 

11 crew members several times to take your seat 

12 while the seat belt light was on? 

13 MR. WALLAESA: I was asked to take 

14 my seat several times. I do not know if the 

15 seat belt sign was on or not. 

16 JUDGE YODER: Okay. All right. 

17 And, when they asked you to take 

18 your seat, did you refuse? 

19 MR. WALLAESA: I do not believe I 

20 refused. 

21 JUDGE YODER: Well, did you take 

22 your seat each time they asked you to take 

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51 

1 your seat? 

2 MR. WALLAESA: I took my seat 

3 several times. 

4 JUDGE YODER: I think what I asked 

5 you was, did you take your seat each time they 

6 asked you to take your seat? 

7 MR. WALLAESA: I believe so. 

8 JUDGE YODER: You believe you did. 

9 All right. 

10 So, what I'm writing in here is 

11 that you are denying knowledge or information 

12 as to whether the seat belt sign was lit, and 

13 that you are denying that - - and you are 

14 admitting you were asked several times to take 

15 your seat, but you are denying that you 

16 refused. 

17 Mr. Wallaesa, that's, of course, 

18 not what you said in your answer. In fact, in 

19 your answer you didn't disagree with that 

20 statement at all, which constitutes an 

21 admission of that allegation. 

22 Do you understand what I'm saying? 

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MR. WALLAESA: Yes, Your Honor. 

2 JUDGE YODER: Okay. 

3 MR. WALLAESA: The way you have 

4 broken it up and placed it, that's what --

5 JUDGE YODER: That's what you 

6 would like to do if you had a chance to do it, 

7 but you didn't. 

8 MR. WALLAESA: No, no, no. No, no. 

9 That's what I believe happened. 

10 JUDGE YODER: No, I understand 

11 that. That's what you would like to allege 

12 with respect to the complaint, if you had an 

13 opportunity to do so, but you did not do it in 

14 your answer. 

15 MR. WALLAESA: Okay. 

16 JUDGE YODER: This is why 

17 sometimes some people get attorneys to 

18 represent them. 

19 MR. WALLAESA: Yes, Your Honor. 

2 0 JUDGE YODER: All right. And then 

21 Paragraph 5 says, "Your conduct referenced in 

22 the above paragraphs interfered with the 

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1 performance of the crew members' duties." 

2 And, in your response you say, in 

3 your request for assistance you did not 

4 interfere with the performance of the duties. 

5 That's what we call a non-matching answer, Mr. 

6 Wallaesa. 

7 Do you understand what I'm saying? 

8 MR. WALLAESA: No, I do not 

9 understand what you are saying. 

10 JUDGE YODER: Okay. What they 

11 alleged was that in doing these things up here 

12 you interfered with the performance of the 

13 crew members' duties. 

14 And, what you said is that, in 

15 asking for assistance you didn't interfere. 

16 MR. WALLAESA: Correct. 

17 JUDGE YODER: Okay. That leaves 

18 the other question hanging, so you sort of 

19 half answered this question, but not 

20 completely. 

21 Do you understand what I'm saying? 

2 2 MR. WALLAESA: Yes, Your Honor. 

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1 JUDGE YODER: All right. Since 

2 you say you didn't do or didn't know whether 

3 you did the things in the previous paragraph, 

4 that sort of addresses the same question. 

5 Now, you have already submitted 

6 something with respect to whether you had any 

7 witnesses to call. 

8 MR. WALLAESA: That's correct. 

9 JUDGE YODER: You said you had no 

10 witnesses? 

11 MR. WALLAESA: My witnesses are 

12 the same witnesses as the Complainant. 

13 JUDGE YODER: But, you filed 

14 something saying you didn't have any 

15 witnesses. Is that right? 

16 MR. WALLAESA: That is correct. 

17 JUDGE YODER: You don't propose to 

18 be witness in this proceeding? 

19 MR. WALLAESA: Yes, Your Honor, 

20 but I'm also the Respondent. 

21 JUDGE YODER: You didn't identify 

22 yourself as a witness that you were going to 

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call. 

MR. WALLAESA: No, I did not. 

3 JUDGE YODER: That you weren't 

4 going to call an y witnesses. 

5 Do you understand what I'm saying? 

6 MR. WALLAESA: Yes, Your Honor. 

JUDGE YODER: You didn't call an y 

witnesses. They would bring their witnesses. 

9 They would present their case, and then they 

10 would rest, and you would present no witnesses 

11 and you would lose. 

12 Do you understand? 

13 MR. WALLAESA: Yes, Your Honor. 

14 JUDGE YODER: All right. Or, you 

15 might not lose, they might do a lousy job, but 

16 they've already filed two statements a s t o 

17 what their people are going to testify to. 

18 Do you have those documents? 

19 MR. WALLAESA: I believe I do, 

20 sir, yes. 

21 JUDGE YODER: Do you have them in 

22 front of you? 

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1 MR. WALLAESA: I have everything 

2 in front of me, Your Honor. 

JUDGE YODER: That's not a 

4 response. Do you have a document, Attachment 

5 A to the motion for protective order, dated 

6 December 3, 2009, to whom it may concern, and, 

7 apparently, submitted by' an FBI agent. 

8 MR. WALLAESA: James Mollica, sir? 

9 JUDGE YODER: Well, my copy has --

10 oh, no, excuse me, that's the -- that's by the 

11 - - that's by the passenger. Excuse me. 

12 December 3, that's by the 

13 passenger. Do you have that document? 

14 MR. WALLAESA: I found the 

15 document for the Administrator which lists the 

16 summary of testimony. 

17 JUDGE YODER: No, I'm talking 

18 about the woman who you talked with on the 

19 plane. Do you have her statement? 

20 MR. WALLAESA: I am currently 

21 looking for that. Your Honor. Yes, I have it 

22 right here. 

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1 JUDGE YODER: Did she appear in 

2 the criminal trial? 

MR. WALLAESA: Yes, she did. 

4 JUDGE YODER: Did she testify? 

5 MR. WALLAESA: Yes, she did. 

JUDGE YODER: Well, did she 

testify substantially along the lines that are 

stated in this statement. Attachment A? 

MR. WALLAESA: It's been a while 

10 since I read it. I'm just skimming over it now 

11 to confirm or deny that. 

12 Slightly different, but pretty 

13 close. There were some --

14 JUDGE YODER: Do you have any 

15 reason to assume that she' s not going to 

16 testify similarly to this if she appears in 

17 the proceeding here on the civil penalty 

18 question? 

19 MR. WALLAESA: I'd assume it would 

20 be relatively close. 

21 JUDGE YODER: How about the -- how 

22 about the statement submitted by the FBI 

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1 agent? His name is Mollica. Did he testify 

2 at the criminal proceeding? 

3 MR. WALLAESA: Yes, he did. 

4 JUDGE YODER: And, do you have an y 

5 reason to assume that his testimony here would 

6 be different from that in this statement or in 

his testimony at the criminal proceeding? 

MR. WALLAESA: Most probably not, 

Your Honor. 

10 JUDGE YODER: Were you under 

11 psychiatric care at the time of this incident? 

12 MR. WALLAESA: No, I was not. 

13 JUDGE YODER: Were you on drugs? 

14 MR. WALLAESA: No prescription. 

15 Actually, yes, you may actually --

16 JUDGE YODER: You understand how 

17 important it is that things you say to me be 

18 true. 

19 MR. WALLAESA: -- no, I'm not --

2 0 JUDGE YODER: I just wanted to 

21 make -- the answer to that is yes. 

22 MR. WALLAESA: At the time I had a 

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1 prescription for a n anti-depressant. 

2 JUDGE YODER: That was not my 

3 question. Do you understand how important it 

4 is that the things you say to me be true? 

5 MR. WALLAESA: Yes, Your Honor. 

6 JUDGE YODER: Okay. 

7 MR. WALLAESA: 100 percent. 

8 JUDGE YODER: I'm the only Federal 

9 administrative law judge who has successfully 

10 referred a case of perjury before him for 

11 prosecution by the Justice Department. 

12 MR. WALLAESA: I fully understand. 

13 JUDGE YODER: Just so you 

14 understand the seriousness with which we take 

15 the statements that are made in these 

16 proceedings. 

17 Do you understand what I'm saying? 

18 MR. WALLAESA: Yes, I do. Your 

19 Honor, I understand --

20 JUDGE YODER: My question was, 

21 were you on drugs at the time of this 

22 incident ? 

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1 MR. WALLAESA: Legal, not illegal, 

2 but yes. 

3 JUDGE YODER: Okay. You mean 

4 prescription drugs? You said prescription 

5 drugs. What drugs were you on, Mr. Wallaesa? 

6 MR. WALLAESA: I had an ant i -

depressant, and I - - for fear of saying the 

wrong name, I can't remember if it was -- I 

can't remember which one it was. I do have 

10 the prescription, and I have the bottle. 

11 JUDGE YODER: All right. And, do 

12 you know what dosage or your frequency of that 

13 drug was? 

14 MR. WALLAESA: It' s two years, I 

15 don' t remember. I can ge t tha t informatio n 

16 fo r you. That would be absolutel y no problem. 

17 JUDGE YODER: Were you -- so you 

18 were medicatin g on tha t prescriptio n dru g a t 

19 th e time you went on thi s flight ? 

20 MR. WALLAESA: I had that , and, 

21 yes, I als o had an alcoholi c drin k on th e 

22 flight . 

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1 JUDGE YODER: What was that, Mr. 

2 Wallaesa? 

MR. WALLAESA: I had an Irish 

coffee. 

5 JUDGE YODER: Did you have any 

6 drinks before you got on the flight? 

7 MR. WALLAESA: (No audible 

response.) 

9 JUDGE YODER: Are you still there? 

10 MR. WALLAESA: Yes, sir. 

11 JUDGE YODER: I didn't hear your 

12 answer. 

13 MR. WALLAESA: I apologize. I had 

14 no drinks. I had the prescription and the 

15 drink, and that's what I had. 

16 JUDGE YODER: Okay. When did you 

17 take the prescription? 

18 MR. WALLAESA: Before I left my 

19 house.' I don't know the exact time. I can't 

2 0 remember, I don't have -- I don't remember the 

21 details of the flight. 

22 JUDGE YODER: Okay. 

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1 MR. WALLAESA: So, roughly, it was 

2 two hours before the flight. 

3 JUDGE YODER: Do you understand 

4 why I asked that question, Mr. Wallaesa? 

5 MR. WALLAESA: Yes, sir, if I was 

still under the influence - -

JUDGE YODER: I'm not sure I heard 

all of that. You'11 have to speak up. 

9 MR. WALLAESA: You were asking 

10 whether I was still considered under the 

11 influence of that prescription at that time. 

12 JUDGE YODER: Well, I asked 

13 because of some of the statements in the FBI 

14 agent's statement. Now, you've read his 

15 statement. You know what he said, and you 

16 heard him testify at the criminal proceeding. 

17 MR. WALLAESA: Yes, sir. 

18 JUDGE YODER: Having read his 

19 statement again, you still contend that you 

20 when you were asked to sit down you sat down 

21 each time you were asked? 

22 MR. WALLAESA: Yes, I did. 

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1 actually. 

2 JUDGE YODER: According to Mr, 

3 Mollica, "Flight attendants had told him to 

4 return to his seat while he was in the aisle. 

5 Flight attendants then brought the white male 

6 to the front of the plane. It appeared they 

7 continued to talk to him. One of the flight 

8 attendants looked the writer's way, pointed 

9 and said, 'We need your help now' . One of the 

10 flight attendants stated that Brian was 

11 harassing a female on the flight. He had 

12 moved his seat to the back of the plane 

13 because he would not leave the female alone. 

14 Flight attendant advised further that Brian 

15 was ordered to stay in his seat, and has come 

16 to the front of the plane again and is causing 

17 a disruption. Writer explained to Brian that 

18 he needed to listen to the flight attendants 

19 and take his seat. Brian stated that he was 

20 not taking his seat until he had a chance to 

21 talk to the person." 

22 Do you se e that ? 

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MR. WALLAESA: Yes. 

JUDGE YODER: "Brian stated that 

3 he was not sitting down anywhere until he 

4 talked to her. Writer expressed again that he 

5 would like to solve the problem the easiest 

6 way possible. Brian stated he didn't care and 

wanted to talk to the person." 

Now, Mr. Wallaesa, if this goes to 

9 hearing, this FBI agent is expected to 

10 testify, is that correct? 

11 MR. WALLAESA: That is correct, 

12 sir. 

13 JUDGE YODER: And, I gather this 

14 lady is also expected to testify. 

15 MR. WALLAESA: That's correct. 

16 JUDGE YODER: And, I gather that 

17 the flight attendants are also expected to 

18 testify. 

19 MR. WALLAESA: Yes, Your Honor. 

2 0 JUDGE YODER: Do you understand 

21 what their testimony is going to say, Mr. 

22 Wallaesa? 

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MR. WALLAESA: Yes, I do. Your 

Honor. 

3 JUDGE YODER: And so, let's say 

4 there are two flight attendants, and an FBI 

5 agent, and the woman testifying on one hand, 

6 and you testifying on the other hand. 

7 Do you understand what the burden 

of proof in this case is? 

MR. WALLAESA: Yes, I do. 

10 JUDGE YODER: The burden is on the 

11 FAA to prove their case by a preponderance of 

12 the evidence. That means they have to have 

13 more evidence supporting their version of the 

14 events than you do supporting your version of 

15 the events. 

16 Do you understand? 

17 MR. WALLAESA: Yes, sir. 

18 JUDGE YODER: There are going to 

19 be four people saying their version is 

20 correct, and you are going to be saying your 

21 version is correct. Do you get some idea of 

22 how that's going to come out? 

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1 MR. WALLAESA: I was acquitted in 

2 the criminal trial. Your Honor. 

JUDGE YODER: In the criminal 

4 trial, you have a different statute, you have 

5 different allegations, and you have to prove 

6 guilt beyond a reasonable doubt. That's a 

7 totally different standard, Mr. Wallaesa. 

MR. WALLAESA: Yes, sir. Your 

Honor. 

10 JUDGE YODER: I hope you aren't 

11 being misled by assuming that this trial is 

12 going to be like the criminal trial. 

13 MR. WALLAESA: I do not. 

14 JUDGE YODER: There is no jury 

15 here. And, there is no standard of beyond a 

16 reasonable doubt. All they have to do is show 

17 that it's more likely that their version is 

18 true than your version is true. 

19 Do you understand? 

2 0 MR. WALLAESA: Yes, Your Honor. 

21 JUDGE YODER: And, that's point 

2 2 number one. 

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1 Point number two is, you didn't 

2 file your answer on time. 

3 Point number three is, when you 

4 filed it you didn't deny the operative 

5 allegations of the complaint. 

6 Do you understand what I'm saying, 

7 Mr. Wallaesa? 

8 MR. WALLAESA: Yes, sir, Your 

9 Honor. 

10 JUDGE YODER: You are in a 

11 difficult position. All right? All right. 

12 Let's just see if we've covered - -

13 Mr. Stuart? 

14 MR. STUART: Yes, Judge. 

15 JUDGE YODER: Have you made any 

16 effort to settle this case? 

17 MR. STUART: I've been unable to 

18 contact Mr. Wallaesa at all, Your Honor. 

19 There were efforts made when the previous 

20 attorney was assigned to the case, which were 

21 unsuccessful. I think those were made during 

22 the informal conference. 

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1 JUDGE YODER: These are going to 

2 be more successful. 

3 MR. STUART: Your Honor, I'm --

4 JUDGE YODER: Number one, you are 

5 going to get in touch with Mr. Wallaesa. 

6 Mr. Wallaesa, is there any reason 

7 why Mr. Stuart can't get in touch with you? 

8 MR. WALLAESA: No. I've been --

9 I've responded to your -- this number, the 202 

10 number, I believe it's your secretary's 

11 number, whenever she had called me. 

12 The only difficulty we had, we had 

13 this - - she was on vacation some time in 

14 August, and I wasn't able to reschedule the 

15 conference. 

16 MR. STUART: I think that was with 

17 the other attorney, but since I've tried to 

18 contact you this summer, you've not returned 

19 my calls, and you haven't answered the mail. 

20 So, I've been unable to reach you to discuss 

21 anything about the case. 

22 JUDGE YODER: Do we have your 

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1 telephone number, Mr. Wallaesa? 

2 MR. WALLAESA: Yes, you do. 

3 JUDGE YODER: What is it? 

MR. WALLAESA: 570-778-1335, which 

5 I filed the documentation for in the response. 

6 JUDGE YODER: Well, what I'm going 

7 to do is, I'm going to ask you folks to reason 

together and see if you can't come up with a 

sensible settlement of this case. 

10 I think we have itemized enough 

11 problems with both sides in this proceeding 

12 to give anybody pause. 

13 I'd like -- you give me a date by 

14 which you think you can discuss this. 

15 Mr. Wallaesa, you've got -- you've 

16 got two motions pending that could result in 

17 a default judgment against you. 

18 Do you understand what I'm saying? 

19 You filed your answer late. You didn't deny 

20 the allegations of the complaint. 

21 MR. WALLAESA: I do not believe I 

2 2 filed the answer late. 

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JUDGE YODER: Well, Mr. Wallaesa, 

2 it doesn't matter what you believe, I just 

3 ruled on the question that -- if I rule that 

4 you filed it late, you filed it late. 

5 Do you understand what I'm saying? 

6 MR. WALLAESA: Yes, Your Honor. 

JUDGE YODER: All right. And, the 

answer did not respond to the complaint, and 

9 the allegations in it. 

10 Now, s o you've got those two 

11 problems with your case, and we could enter a 

12 default on this case now and limit the 

13 question to the level of civil penalty. 

14 If we did that, what we'd wind up 

15 with is a determination as to how many 

16 violations should be accepted as proved, and 

17 what the level of penalty for each of them 

18 should be. 

19 Now, Mr. Stuart, you' ve got 

2 0 you' ve got an allegation that he failed to 

21 fasten his seat belt in the conclusions, as 

22 one of the violations, but you never allege 

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71 

that he failed to fasten his seat belt. 

And, the third violation is 

3 dependent on the other two, and you don' t 

4 allege anything with respect to interference, 

5 other than failing to sit down. Is that right? 

6 MR. STUART: Let's see, Your 

Honor. Okay. The first point about not 

fastening his seat belt, I think that's 

9 contained within Paragraph 4, the fact that 

10 the Respondent was not - -

11 JUDGE YODER: I heard you say that 

12 before, Mr. Stuart. It's no more convincing 

13 now than it as then. 

14 If you want to conclude things 

15 with respect to, and draw legal conclusions, 

16 you need to allege facts and support them. 

17 You told me before that you didn't 

18 draft the complaint. Unfortunately, it is the 

19 complaint, whether you drafted it or not. 

20 But, my point just now was that 

21 there' s nothing in here that relates to 

22 interference, other than the allegation that 

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1 he didn't sit down when he was asked to. 

2 Isn't that correct? 

3 MR. STUART: That's correct. 

4 JUDGE YODER: That's all you are 

5 going to be able to prove in order to 

6 establish that. So, it's a really a dependent 

7 violation. You aren't proving anything beyond 

8 the earlier violation, in order to attempt to 

9 establish that third violation. 

10 You should take all those things 

11 into consideration. Try to come up with some 

12 reasonable settlement with Mr. Wallaesa. 

13 If you don't get a settlement, I 

14 want a brief on your level of penalty. I want 

15 to know how you computed it, and I want to 

16 know your precedents for it. 

17 I'll rule on the motions with 

18 respect to the timeliness of the complaint, of 

19 the answer, and the completeness of the 

20 answer, once I hear back from you folks and we 

21 get your brief on the level of penalty. 

22 MR. STUART: So, just to clarify, 

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1 Your Honor. First, you'd like us to have a 

2 settlement discussion. If we are unable to 

reach a settlement, then - -

JUDGE YODER: Then I want a brief. 

5 MR. STUART: -- then you want a 

6 brief on the amount of sanction. 

JUDGE YODER: Well, I want to know 

how you computed it, and what your basis for 

it is . 

10 MR. STUART: Right. 

11 JUDGE YODER: Including precedents 

12 for it. 

13 MR. STUART: Right. 

14 JUDGE YODER: And, your precedents 

15 need to relate to what you've alleged in the 

16 complaint, not to what you've added on by the 

17 way of these factual submissions, other 

18 people's statements. 

19 MR. STUART: I understand. Your 

2 0 Honor. 

21 JUDGE YODER: Do you understand 

22 what I'm saying? You can't assume that you've 

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1 alleged all the things that are in these 

2 statements you've submitted. You haven't 

3 alleged them. 

4 MR. STUART: I understand. 

JUDGE YODER: The issues are 

5 framed by what you've alleged. You can't 

7 expect someone to prepare for a hearing unless 

you allege the facts that you propose to put 

9 at issue in the proceeding. 

10 MR. STUART: I understand. Your 

11 Honor. 

12 JUDGE YODER: All right. So , can 

13 you do that in two weeks? 

14 MR. STUART: That will be fine on 

15 my end. Your Honor. 

16 JUDGE YODER: You folks talk, get 

17 back to me in two weeks. Let me know whether 

18 this case is settling or whether you want to 

19 go to hearing. 

20 If you want it to go to hearing, 

21 then you file your brief. When is that going 

22 t o he ? Two weeks afte r that? 

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1 MR. STUART: Could you repeat 

2 that, Your Honor? 

3 JUDGE YODER: The first one, two 

4 weeks would be November 1. The second one, 

two weeks, would be November 15. 

6 MR. STUART: Okay. The first two 

7 weeks for the settlement discussion. The 

second two weeks? 

9 JUDGE YODER: For the brief. 

10 MR. STUART: For the brief, in the 

11 event that we cannot settle. 

12 JUDGE YODER: That's right. 

13 MR. STUART: And --

14 JUDGE YODER: Mr. Wallaesa, if you 

15 want to reply to that brief, we'll give you a 

16 week after November 15, until November 22. 

17 MR. WALLAESA: Okay. 

18 JUDGE YODER: Anybody have any 

19 problem with those dates? 

2 0 MR. STUART: None, Your Honor. I 

21 just want to get some hard dates here. So, 

2 2 November 1st will be the deadline for a 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE.. N.W. 

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
76 

1 settlement discussion. Then two weeks after 

2 that will be November 15th. 

3 JUDGE YODER: November 1 is the 

4 date on which you will notify me as to whether 

5 the case is settling. 

6 MR. STUART: Thank you, Your 

7 Honor. I have that. 

And, as for the outstanding -- the 

9 Complainant's outstanding motion to deem each 

10 allegation admitted, will that just - - will 

11 that be on hold? 

12 JUDGE YODER: Yes, that's what we 

13 were saying, that we will hold that until 

14 after we receive these filings. 

15 MR. STUART: Okay. And, my next 

16 question would just be, Mr. Wallaesa was 

17 unwilling to settle earlier. Is he willing to 

18 settle now? 

19 JUDGE YODER: That's something you 

20 need to take up with him. If you don't 

21 settle, you'll get the pleasure of appearing 

22 before me in a hearing. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com 
77 

1 MR. STUART: Okay. I guess I just 

2 want to make sure that I'll be able to contact 

3 Mr. Wallaesa after this phone conversation. 

4 JUDGE YODER: If you can't contact 

5 Mr. Wallaesa, you let me know. 

6 MR. STUART: Okay. 

7 MR. WALLAESA: He will be able to 

8 contact me. 

9 MR. STUART: All right. 

10 JUDGE YODER: Mr. Wallaesa. 

11 MR. WALLAESA: Yes, sir. 

12 JUDGE YODER: I expect you folks 

13 to negotiate in good faith to try to achieve 

14 a settlement of this case. Otherwise, you get 

15 - - you get to a hearing and you' ve got no 

16 control over what your penalty is going to be. 

17 It will be whatever I say it's going to be. 

18 MR. WALLAESA: Yes, Your Honor. 

19 JUDGE YODER: Are we clear? 

20 MR. WALLAESA: I fully understand. 

21 JUDGE YODER; Okay. All right. 

2 2 Anything further? 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
1 MR. STUART: Nothing, Your Honor. 

2 JUDGE YODER: That concludes the 

3 pre-hearing conference. 

4 Thank you both very much. 

5 MR. STUART: Thank you. 

6 MR. WALLAESA: Thank you. 

7 (Whereupon, the above-entitled 

matter was concluded at 4:21 p.m.) 

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NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross com 
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Neal R. Gross & Co. 

202-234-4433 

Inc . 
Page 83 

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202-234-443 3 
Page 85 

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202-234-4433 
Page 86 

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55:4,8.8,10 

WL30:2 

woman 13:10 56:18 

65:5 

words 4:13 

working 4:8 

Wortham 2:6 

wouldn't 15:1 33:2 

write 47:5 

Writer 63:17 64:4 

writer's 63:8 

writing 51:10 

written 20:12 

A C 1 ^ 45:o 

wrong 43:9 46:2 

60:8 

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year 7: IS, 19 

years 60:14 

VODE R 1:213:3,8 

3:11 4:18 5:2,9,12 

5:16,196:1,6 7:14 

7:22 8:13,199:5 

9:10,18 10:2,11 

10:16 11:6,11,16 

12:10,16 13:5,9 

13:13,19 14:9.17 

14:22 15:6,13,17 

15:21 16:13,18 

17:1,5,13,18 18:4 

18:12,16,22 19:5 

19:9,13,19,22 

20:4,11,15.17,21 

21:2.6,11,14,18 

21:22 22:3,9,13 

22:18,21 23:4,8 

23:12,14,18,20 

24:3,9.13.20 25:3 

25:8.14.21 26:6 

26:15 27:5,17 

28:9,15.21 29:2 

29:10,13,1930:1 

30:7,17,21 31:2,7 

31:11.14,1932:11 

33:8,15 34:4,6,12 

34:16 35:4,9,14 

35:21 36:3,9,15 

36:1837:5,12,21 

38:8,1839:6,10 

39:15,21 40:6,20 

41:2,5,9,13,16,20 

42:1,5,9,1443:1,7 

43:14,22 44:4,9 

44:13,17,2045:6 

45:11,1946:2,16 

46:20 47:2,7 48:4 

48:7,16,1949:1 

49:10 50:1.4,16 

50:21 51:4,8 52:2 

52:5,10,16,20 

53:10,1754:1,9 

54:13,17,21 55:3 

55:7,14,21 56:3,9 

56:17 57:1.4,6.14 

57:21 58:4,10,13 

58:16.20 59:2,6,8 

59:13,20 60:3,11 

60:1761:1,5.9,11 

61:16,22 62:3,7 

62:12,1863:2 

64:2,13,16,20 

65:3,10,18 66:3 

66:10,14,21 67:10 

67:15 68:1,4,22 

69:3,6 70:1,7 

71:11 72:4 73:4,7 

73:11,14,21 74:5 

74:12,16 75:3,9 

75:12,14,1876:3 

76:12,1977:4,10 

77:12,19,21 78:2 

$ 

$1.100 25:9 

$11,000 24:18 25:9 

25:10,13,1827:3 

27:7,10,14 

$2,200 30:9 

$33,000 27:8 

$5,000 30:13 

$5,500 24:19 

1 

145:6 75:4 76:3 

1st 75:22 

1010:13 

100 59:7 

n t h 22:12 

111420:9 

11272 2:6 

12147:1848:9 

121.580 25:2 

13th 22:6 43:12 

13.220 23:10,11 

1423:1025:241:18 

42:5 

158:733:8,10,16 

33:1875:5,16 

15th 23:2,4 34:4,5 

34:7,10 76:2 

16th 43:13 

17th 33:6 35:6 44:6 

18 1:11 20:8 34:13 

1998 29:8 

2 

29:945:19 

2:593:2 

208:241:14,21 

42:6 44:545:12 

45:20 

2007 29:20 

2009 23:3,5 43:11 

56:6 

20108:7 10:13 

20:20 33:10,18 

43:13 44:3,3 

45:12 

201092:7 

2011 1:11 

202 2:22 68:9 

205912:21 

2275:16 

2441:1842:6 

267-9958 2:22 

27th33:7 35:7 

28 34:13 

28th 8:9 

3 

3 11:1 49:3,14 56:6 

56:12 

3:00 1:15 

3045:1,16 

3049 48:8 

4 

49:9,13 10:1 11:7 

12:4,8 49:15 71:9 

4:2178:8 

46504 20:8 

48 4:5 

49 20:8 

5 

523:1852:21 

n / 1 '\ o 

570 2:8 

570-778-1335 69:4 

7 

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8 

8th 5:8 

800 2:19 

9 

943:11 

98-12 29:12 

Neal R. Gross & Co. , Inc. 

202-234-4433 
CERTIFICAT E 

This is to certify that the foregoing transcript 

In the matter of: Brian Wallaesa 

Before: us DOT 

Dace: 10-18-11 

Place: telephone conference 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of Che proceedings. 

Court Reporter 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLANDAVE.. N.W. 

(202) 23i-«33 WASHINGTON, D.C 20005-3701 www.nealrgross com