10/22/2014 05:45 4252271007

DAVJD F. SHAYNE FAA OFFICE OF REGIONAL CoUNSEL 1601 LIND AVE., SW RENTON, WASHINGTON 98057 TELEPHONE: (425) 227-2165 FACSIMILE: (425) 227-1007 ANM7



### UNITED TATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
In the Matter of: AA DOCKET NO. FAA 2014-0116 

### Joseph Maridon, Sr. Judge Richard Goodwin PAGE 02/09



### COMPLAINANT'SMOTION FOR 1ARTIAL DECISION ISUMMARY JUDGMENTI Complainant moves for Summary Judgment, pursuant to the provisions of 14 

### C.F.R. Section 13 .218(±)(5) and Rule 56 ofthe Federal es ofCivil Procedure (FRCP), since, after consideringthe pleadings and the attached declarations andlevidence, 

### it should be clearthat there is no genuine issue as to the mate.rial fucts alleged and discussed



# b~low, and the Federal Aviation Administration (FAA) 

### is entitled to ajudgment in this case as a matJr oflaw as to the issue ofwhetherthe violation was i 

### committed as alleged. Factual background 

### Respondent owned orleased ahan er at theNorth Las Vegas airport. Aircraft belonging to an. airline that conducted regular operations oJofthat airport, Vision Airlines, often traversed the apron nelct to his hangerenroute to the runway. Rlspondent did not like the noise these aircraftproduce and 

### IDd reqM<ol



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Complainant's Motion for Partial Decision (Summary Judgment) FAA Dockct No.

**2014~116** Page I ofS DAVIDF. SHAYNE, FAAATTORNEY TEL: (425) 227-2165; FAX: (425) 227-100710/22/2014 05:45 4252271007 ANM7 PAGE 03/09

On September 29, 2012, Respondent pulled hls truck out and parked in the pathway ofa taxiing aircraft, forcing the aircraft to stop and wait until County personnel persuaded Respondent to move the truck. On May 29, 2013, the FAA issued aNotice ofProposed Civil Penalty (NPCP) which alleged the following: 1. On or about September 29, 2012, at approximately 1430local time, Respondent parked his vehicle on an active taxiway oftheNorth Las Vegas Airport (KVGT), Las Vegas, Nevada. 2. Respondent's parked vehicle prevented an operating Vision Airlines' aircraft from taxing for take-off 3. Respondent knew his parked vehicl.e would interfere with the taxiing ofthe aircraft. 4. Respondent's parked vehide interfered with the flight crewmembers' performance oftheir duties aboard that aircraft. By reason ofthe foregoing circumstances, Respondent violated Section 91,11 ofthe Federal Aviation Regulations (Title 14, Code ofFederal Regulations), which statesthat no person may interfere with a crewmemberin the performance ofthe crewmember's duties aboard an aircraft being operated. On May 5, 2014, Complainant filed the Complaint 

### sub judice containing the identical language. Respondent filed aMotiontoDismiss, alleging that the cited regulation, 14 

### C.FR 91.11, is inapplicable to him under these facts; that the FM lacks subject matterjurisdiction; and that it is estopped from. prosecuting this enforcement. The gravamen ofhis argument was that, since he never came into physical contact withthe aircraft orits crew, he could not have "interfered" with the crewmembers as that term is used in 14 

### C.FR 91.11. He also argued that the 

### FMhas no subject matterjurisdictionbecause ithas no authority to regulate his use ofamotorvehicle on this particular airport.

Complainant'sMotion for Partial Decision (Summary Judgment) FAADocket No. 20!4-0ll6 Page 2 of8 . DAVIDF. SHAYNE, FAAATTORNEY TEL: (425) 227-2165; FAX: (425) 227-100710/22/2014 05:45 4252271007 ANH7 PAGE 04/09


### Complainant responded to the motion and argued Congress vested in the FAAbroad authority to regulate the operati,on ofaircraft; and the fact Respondent used "a motor vehicle as the instmmentality does not remove the action from this court'sjurisdiction,'' Complainant replied that, arguendo, ifthere is any ambiguity in 14 C.FR 

### 91,11 that requires interpretation, the Adjudicator should defer to FAA interpretation ofits own regulations, relying in part on arecent legal interpretation that opined persons who point lasers atpilots violate 14 CFR 

### 9U1even though they are located outside the aircraft, Intemretation 

### Issu_e_q to Dennis

**RQb_~rts,** 

### 2011 WL 2313603 (D.

### 0.T), The ALJ denied the Respondent's Motion without prejudice. The parties then exchanged discovery, and this Motion for Summary Judgment follows. All Releyant Factual Allegations AreAdmitted In

### response to Complainant's Request for Admission One, Respondent statedthe following: "Respondent Admits parking avehicle with the hood up and hazard lights flashing inthe vicinity of his hangar on theNorth Las Vegas Airportpreventing an aircraftfrom proceeding past his hanger. Respondent denies blocking the forward motion ofthe aircraft since 

### it was able to proceed forward, and alter its course and North Las 

### Vegas airportrules do not give aircraft on the ground the right ofway and the aircraft had the obligation to see and avoid any hazards. AirportManager was previously informed ofbut did not resolve the taxi, and noise issues." In response to Complainant'sRequest for Admission Two, Respondent stated the following: "Respondent admits telling Vincent Rivas an airport employee that respondent parked his truck in front ofthe aircraft to protest the overly noisy aircraft travelling in the area directly adjacent to Respondent's hangar afterthe airport manager had been notified ofthe noise and taxi issues. North Las Vegas Airport Rules do not give aircraft on the ground the right ofway and the aircraft had the obligationto see and avoid potential hazards. Airport Manager was previously informed of, but did not resolve the taxi, and noise issues," Thus, Respondent admits that he I) used avehicle to blockthe path ofan on-coming aircraft taxiing towards an active runwayfor take-off; and 2) he did so purposefully.

Complainant's Motion for Partial Decision (Summary Ju(!gment) FAADocket No, 2014-0il6 Page 3 of8 DAVID F. SFJAYNE,FAAATTORNEY TEL; (425) 227-2165; FAX: (425) 227-100710/22/2014 05:45 4252271007 ANM7



### Forthereasons that follow, Complaint asks for partial SU!IlirulJY

### judgment on factual allegations in the Complaint, leaving onlythe sanction for adjudication. 

### ARGUMENT AND BASIS FORREQUESTED RELIEF A. Standard ofReview PAGE 05/09



### AMotion for Decision pursuantto§ 13.218(£)(2) is, for all 

### intents and purposes, the same as 

### a Motion for Summary Judgment under l'RCP 56 and is reviewed under the same standard. 

### In Re tl\t; 

### Matter ofSs:_ott McDougall, Doc. CP89EA0316 at

### 4 (1990). Motions for SummaryJudgment may be decided on admissible evidence that is outside ofthe pleadings, normally presented in declarations or affidavits. In re the Matter ofHorizon ,8,lt!ndustries, 

### FAA OrderNo. 96-24 (1996). All inferences in 

### the evidence must 

### be drawn in favor ofthe non-moving party. If 

### the court detennines that the nonmoving party demonstrates, through putatively admissible evidence that some genuine clispute offact exists, then the motion should be denied. McDolJgall. 

### It: on the other hand, the wurt 

### determines no genuine issues offact 

### exist and the outstanding legal issues are resolved in favor ofthe moving 

### party's position, then the moving party is entitled to 

### a judgment on any suchissue 

### as a matteroflaw. Id. In this case, Respondent has not 

### raised any inference of

### a significant factual dispute. Rather, he contends that 14 C.F.R. 91.11 

### is inapplicable to these facts for the reasons he presented in his Motion to Dismiss. 

### The only dispute remaining 

### forthis tribunal to adjudicate is 

### apurely

### legal one; the meaning and application ofl4C.P.R. 9l.ll. As 

### eKplained previously and below, this tnbunaJ shouldfind that 14 C.F.R. 91.11 applies to Respondent's readily-admitted conduct and that he is 

### subject to sanctionfor that 

### conduct. Complainant's Motion for Partial Decision (Summary Judgment) FAA Docket No. 2014-0116 Page 4 of8 DAVIDF. SHAYNE, FAA ATTORNEY TEL: (425) 227-2165; FAX: (425) 227-100710/22/2014 05:45 4252271007 ANM7 PAGE 05/09

B. The facts establish a violation of14 C.F.R. § 91.11 

### Complainant hereby incorporates the arguments 

### itpresented in its above-referenced Opposition to Motionto Dismiss ("Opposition") and adds the following: Regarding thejurisdiction ofthe 

### FMto penalize the Respondentunderthe facts ofthis case, courts have long recognized the broad authority ofthe FAA 

### to promulgate and enforce regulations in the promotion of"aircraft safety." F M 

### v. Landy, 705 

### F.2d 624, 628 (2nd 

### Cir. 1983). 

### Courts have recognized this authority extends to the protection of personnel who operate aircraft (i.e., 

### "crewmembers"). 

### JlS. 

### v. Kilpatrick, 759 

### F.2d !250, 1252 (5"' 

### Cir 1985). 

### Nor is its authority limitedto persons physically located aboard an aircraft: "The J.lM

### and its employees are entrusted with assuring 

### air safety in a way

### thatwill protect everyone who flies and everyone

### on the ground 

### as well."

**Rouodtr.~e** 

### v. U.S., 40 

### F.3d 1036, 1039 (9!h 

### Cir, 1994) 

### (Emphasis added). Any actthat interferes with the safe operation ofaU.S_ -registered aircraft is subject to 

### F M jurisdictional authority, even ifthe act in question occurs outside ofthe international boundaries ofthe 

### United States. Landy, jg, 

### It would 

### be absurd forthat authority to be limited simplybecause the act in question took place in or on an airport overwhich some othergovernmental unit also may exercise its authority, and

### Respondent indeed fails to cite 

### to any relevant legal authority in support ofllis argument. 1 

### As for his argumentthat 14 C.F.R. 9111 

### cannot apply to the actions ofan

### individual who does not engage in. 

### any actual physical contact 'With 

### acrewmember orthe aircraft itself, he 

### likewise fails to

' Respondent's reference to ACJ50/5210-20 is inapposite. Whether the FAA or a local airport authorityhas primaryrespon.sibility

### for ground vehicular

### traffic is irrelevant

### to the issue presented inthis case because the instrumentality Respondent chose to obstructforward movement ofthe aircraft is incidental

.. he could !lave used any number ofobjects-or no object at all,just his body-theviolation would essentially be the same, Moreover, Complainant's Motionfor Partial Decision (SummaryJudgment) FAA Docket No, 2014-0116 Page 5 of8 DAVJDF. SHAYNE,l:AAATTORNEY TEL: (425) 227-2165; FAX: (425) 227·100710/22/2014 05:45 4252271007 ANM7 PAGE 07/09

cite to any relevant legal authority to support his limiting construction ofthe regulation. Indeed, there
are numerous examples ofindividuals sanction under 14 C.F.R. 121.5802who engaged in no actual physical contact with crewmembers. See, e.g., In re Wallesa, FAA OrderNo. 2013-2(2013); Inre Abrams 

### FAA Order. 2008-2 (2008). The plain language ofthe regulation 

### simply provides that a J)§!:S_O);! who interferes with 

### a crewmemberis subject to the regulation, none ofRespondent's suggested limitations are apparent in

### the plain language ofthe regulation 

### See City ofhlip,gton v. F.

### C.

### G., 133 S. 

### Ct. 1863, 1874-75 (2013) (cited in "Opposition" for the proposition that courts should defer to an agency's interpretation of

### its own regulations; but likewise providesthatunambiguous regulations are tobe applied as plainly stated). As argued in its "Opposition" Complainant does not concede that 14 C.F.R 91.11 is ambiguous so as to be subject to interpretation, but, if)t 

### is, this tribunal should deferto the FAA's interpretation as argued herein. Forthese reasons, partial summaryjudgment should be gnanted 

### as to Respondent's liability under 14 C.F

### .R. 91.11. 

### CONCLUSION Respondent readily admits the pertinent facts necessary to establish the violation atissue, There is no reason tohold a full-blown evidentiary hearing in this case. Respondent has argued the regulation at issue does not apply to the conduct atissue. 

### He !s free to maintain that position to 

### have that question resolved as thematter oflawthat 

### it 

### is. Complainant agrees his argument should be addressed, but

Advisory Circulars are not binding legal instntments, they are merely guidance, as this one clearly states in its "purpose.'' 2 14 C_F_R. 121.580 states in language nearly identical to 14 C.F.R 91.11: "No person may assault, threaten, intimidate. or interfere with acrewmemb<:r in the pet:totroance ofthe crewmember's duties aboard an aircraftbeing operated under this part_"

Complainant's Motion for Partial Decision (Summary Judgment) FAA Docket No_ 20J4,0IJ6 Page 6 of8 DAv1D F. SHAYNE, FAA A'l"TORNEY TEL; (425) 227-2165; FAX: (425) 227-100710/22/2014 05:45 4252271007 ANM7 PAGE 08/09
firmly rejected. The plain language ofthe regulation, legal precedent and FAA's own interpretations establish clearly the conduct inthis case falls under the purview ofthe regulation. Accordingly, Complainant's Motion for Partial Summary Judgment should be granted. Respectfully submitted this 22nd day ofOctober, 2014.

Complainant's Motionfor Partial Decisi.on (SummaryJudgment) FAA Docket No. 2014-0116 Page 7 of8 DAVJD F. SHAYNE, FAA ATTORNEY TEL: (425) 227-:1.165; FAX: (425) 227-100710/22/2014 05:45 4252271007 ANM7 PAGE 09/09

CERTIFICATE OF SERVICE I hereby certi:ty thatthe foregoing Complainant's Motion for Partial Decision (Summary Judgment) has been served via Facsimile and/or electronic mail this date, to the following: Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 WilburWright Building-Suite 2WIOOO 

### Fax: (202) 493-5142 Ron. Richard C. Goodwin. Office ofHearings, M-20 

### U.S. Department ofTransportation 1200 New Jersey Ave., 

### S.E. East Building Ground Floor, Room El2-230 Washington, D.C. 20590 

### Fax: (202) 366-7536 Joseph

### R. Maridon, Jr. Respondent's Counsel 6130 EltonAve Las Vegas, NV 89107 Fax; (702) 410-6396 Walter L. Ayers Respondent's Counsel 13435 North Whitehouse Court Spokane, WA 99208 Walter_ ayers@msn.com
Dated October 22, 2014.

T ri E Kirk Office ofRegional Counsel 

### (ANM-7) Federal Aviation Administration 1601 Lind Ave. SW Renton, WA 98057 TEL: (425) 227-2160 Complainant's Motion for Partial Decision. (Summary Judgment) FAA Docket No. 2014-0116 Page 8 of8 DAVID F. SHAYNE,FAAATTORNEY TEL: (425) 227-2165; FAX: (425) 227-100710/22/2014 05:45 4252271007 ANM7

FACSIMILE MESSAGE DAVID F. SHAYNE FEDERAL AVIATION ADMINISTRATJON OFFICE OF REGIONAL COUNSEL ANM-7 1601 LIND AVENUE S.W. RENTON, WASlliNGTON 98057 PAGE 01/09

The information contained in this facsimile message is legally privileged and confidential information and is intended only for the use ofthe individual named on this cover sheet Ifthe reader ofthis message is not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copy ofthis facsimile is strictly prohibited. Ifyou have received this facsimile in error, please immediately notify us by telephone at 425-227-2007.


### DATE: TO; 

### FAX 

### NO.: October22, 2014 Hearing Docket Clerk 

## (202) 493-5142 NO. PAGES: 

### FROM: FAX 

### NO.: PHONE NO.: PHONE NO.: 

## 9 including cover David F. Shayne 425-227-1007 RE: Joseph 

### Email: 

# _j Maridon FAA 2014-0166 -----------·-··