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UNITED STATES DEPARTMENT OF TRANSPORTATION r V • .-

FEDERAL AVIATION ADMINISTRATION ' 

WASHINGTON, DC 

In the Matter of: GERALD W. KELLER 

FAA Order No. 2011-8 

Docket No. CP06GL0007 

FDMS No. FAA-2006-25869' 

Served: June 13, 2011 

DECISION AND ORDER' 

By FAA Order No. 2011-2, dated January 11,2011, the Administrator construed 

Respondent Gerald W. Keller's motion to vacate the ALJ's July 24, 2007, order as an 

appeal brief and granted the FAA additional time in which to file a reply brief. The FAA 

filed its reply brief in a timely fashion. After consideration of the briefs and the record in 

this case, Keller's appeal is granted, and the ALJ's order dismissing the proceedings is 

modified to be with prejudice in accordance with 14 C.F.R. § 13,215. 

I. Background 

A summajy of the history of this case follows. 

9/22/06 The FAA filed a complaint, alleging that Keller violated 

49 U.S.C. § 46318^ by pushing and arguing with other passengers 

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

security cases) are also available for viewing at http://www. regulations, go v. See 14 C.F.R. 

§13.2]0(eXl). 

^ The Administrator's civil penalty decisions, along with indexesof the decisions, the rules 

of practice, and other infomiation, are available on the Internet at the following address: 

wwwJaa.gov/about/o^icej>rg/headquartersj}ffices/agc/poljidjudicatJon/AGC40D/ 

Civil_Pemlty. See 14 C.F.R. § 13.210(e)(2). In addition, Thomson Reuters/West publishes 

Federal Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS library) 

and WestLaw (FTRAN-FAA database). For additional information, seethe Web site. 

^ Section 46318 provides that: 

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

flight crew or cabin crew of a civil aircraft or any other individual on the aircraft, or takes 
6/7/07 

7/3/07 

7/19/07 

1I2AI01 

imioi 

prior to take off on board an aircraft operated by Air Tran 

Airways on December 18, 2005, and seeking a $2,500 civil 

penalty. 

The FAA filed an amended complaint as a matter of right under 

14 C.F.R. § 13.214/ adding the allegations that Keller 

violated 14 C.F.R. § 121.580^ by interfering with crewmembers in 

the performance of their duties on that flight because it was 

necessary for the captain to de'viate from his duties to speak with 

Keller about his disruptive behavior and for the crew to get the 

local authorities to remove Keller fi-om the flight. 

The ALJ issued an order striking the amended complaint and 

instructing the FAA that it could initiate a new proceeding alleging 

that Keller violated either 49 U.S.C. § 46318 or 14 C.F.R. 

§ 121.580, or both. 

The FAA filed a motion to withdraw the original complaint 

without prejudice. 

The ALJ granted the FAA's motion to withdraw the complaint 

without prejudice. 

Keller filed a motion to vacate and set aside the ALJ's July 24, 

2007, order granting the FAA's motion to withdraw the complaint 

without prejudice, arguing that under 14 C.F.R. § 13.215,^ the 

dismissal should have been with prejudice. 

any action that poses an imminent threat to the safety of the aircraft or other individuals 

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

than $25,000. 

* Under 14 C.F.R. § 13.214(b)(1), the complainant does not need the consent of the ALJ 

to amend a complaint and the respondent does not need the consent of the ALJ to amend an 

answer as long as the amendment is filed not later than 15 days before a scheduled hearing date. 

In this case, the ALJ had not yet scheduled the hearing. 

' Section 121.580 provides that "no person may assault, threaten, intimidate, or interfere 

with a crewmember in the performance of the crewmember's duties aboard an aircraft being 

operated under this part." 

^ Section 13.215 provides: 

At any time before or during a hearing, an agency attorney may withdraw a complaint or 

a party may withdraw a request for a hearing without the consent of the administrative 

law judge. If an agency attorney withdraws the complaint or a party withdraws the 

request for a hearing and the answer, the administrative taw judge shall dismiss the 

proceedings under this subpart with prejudice. 
8/21/07 The FAA issued a Notice of Proposed Civil Penalty (NPCP). 

proposing to find that Keller violated 49 U.S.C. § 46318 and 

14 C.F.R. § 121.580, and to assess a $2,500 civil penalty. 

3/26/08 The FAA issued a Final Notice of Proposed Civil Penalty 

(FNPCP), proposing to fmd that Keller violated 

49 U.S.C. §46318 and 14 C.F.R. § 121.580 and to assess 

a $2,500 civil penalty. 

2/8/10 The FAA issued an Order Assessing Civil Penalty (OACP), 

fmding that Keller violated 49 U.S.C. §46318 and 14 C.F.R. 

§ 121.580 and assessing a $2,500 civil penalty. 

3/10/10 Keller filed his Petition for Review and Dismissal of Order 

Assessing Civil Penalty with Prejudice and/or Appellant*s Brief 

1/U/l 1 The Administrator issued FAA Order No. 2011-2, construing 

Keller's motion to vacate as a notice of appeal from the ALJ's 

order dismissing the proceedings without prejudice, as well as an 

appeal brief, and granting the FAA additional time in which to file 

a reply brief. 

On February 14, 2011, the FAA filed a document entitled "Complainant's Reply 

in Opposition to Respondent's Motion to Vacate dated July 30, 2007 as Ordered by the 

Federal Aviation Administration Decision Maker January 11, 2011." In its reply, the 

FAA requests that Keller's motion to vacate be denied. The FAA argued that after the 

ALJ struck the amended complaint, the FAA's only option, if it wanted to proceed with 

the allegations related to Section 121.580, was to file a motion to withdraw the complaint 

without prejudice and to issue a new NPCP. The FAA asserted that it filed its motion to 

withdraw the complaint without prejudice under 14 C.F.R. § ,13.218(a), which provides 

that "a party applying for an order or ruling not specifically provided in this subpart shall 

do so by motion." 

The FAA explained that the ALJ "fashioned a relief equitable to both parties," 

allowing the FAA to withdraw its pending action and to initiate a new civil penalty action 
including the allegations related to a violation of Section 121.580 so as to afford Keller 

due process on the "new" allegations. (Reply at 5.) According to the FAA, while this 

relief was not explicitly authorized under the Rules of Pracfice, it "equitably address[ed] 

the rights of both parties and the public interest in air carrier safety." (Reply at 5.) The 

FAA stated that although an "an argument may lie against the statutory allegation 

[49 U.S.C. § 46318] being recharged since it had been asserted in the previous 

complaint... that argument does not exist with regard to the Section 121.580... 

violation," because the ALJ had ruled that it was a new charge. (Reply at 4.)^ 

The FAA concluded its brief by requesting the Administrator to issue a 

declaratory statement regarding the validity of the OACP issued in the second civil 

penalty action if the Administrator grants Keller's appeal. The FAA requested further 

that if the Administrator fmds that the OACP is invalid, that the Administrator: 

1. permit the FAA to withdraw its motion to withdraw its original complaint 

and reverse the ALJ's initial decision denying the FAA's request to 

amend its complaint; 

2. or in the alternative, grant the FAA's "retroactive right to proceed, on its 

then timely filed allegations relative to the "new" violations of 14 C.F.R. 

§ 121.580." (Reply at 5.) 

' The Administrator does not agree with this contention. Under the doctrine oires 

Judicata, a subsequent lawsuit is barred if (1) the two suits involve the same claim or cause of 

action; (2) the earlier suit reached a final judgment on the merits; and (3) the two suits involve 

identical parties and privies. Mpoyo v. Litton Electro-Optical Systems^ 430 F.3d 985, 987 (9*** Cir. 

2005). Regarding the first prong, courts consider whether the two suits involve the same 

transaction. Id. If the two suits involve the same core facts and could be conveniently tried in 

one suit, then the suits involve the same claim or cause of action, satisfying the first prong of the 

test for res judicata. The two civil penalty actions in this case clearly arose from the same 

transaction, /.e., Keller's allegedly disruptive behavior on board an Air Trans Airways flight. 

Regarding the second prong, a dismissal with prejudice is a final judgment on the merits for res 

judicata purposes. NBN Broadcasting, Inc., v. Sheridan Broadcasting Networks, Inc., 105 F.3d 

72 (2d Cir. 1997). The parties in both civil penalty actions were identical, thereby satisfying the 

third prong of the test for res judicata. 
II. Discussion 

While the FAA may be correct that the ALJ's order dismissing the case without 

prejudice provided relief that was equitable to both the FAA and Keller under the 

peculiar circumstances of this case, that relief was unavailable under Section 13.215. 

That rule specifically prescribes that if the FAA withdraws the complaint, the ALJ "shall 

dismiss the proceedings ... with prejudice." 14 C.F.R. § 13.215. Section 13.218's 

provision that a party may file a motion requesting an order not specifically provided for 

in the Rules of Practice does not authorize the ALJ to dismiss a case without prejudice 

contrary to Section 13.215's explicit requirement that the dismissal be with prejudice 

when a complaint is withdrawn. Granted, the ALJ created the "inequity" that he tried to 

fix in this case by ignoring Section 13.214(b)(l)'s explicit language permitting the FAA 

to amend its complaint without the ALJ's consent.^ However, the ALJ's order striking 

the amended complaint is not on appeal and, therefore, is not before the Administrator at 

this time. Moreover, the FAA had the option to file an interlocutory appeal from the 

ALJ's order striking the amended complaint. 

In light of the foregoing, Keller's appeal from the ALJ's order dismissing the 

proceedings without prejudice is modified to be a dismissal with prejudice. 

* The ALJ had not yet scheduled the hearing when the FAA filed the amended complaint 

by right under 14 C.F.R. § 13.214(b)(1). If the AU was concerned about the FAA adding 

allegations regarding Section 121.580, he could have permitted time for discovery and motions 

regarding the new allegations, rather than taking the draconian step of striking the amended 

complaint contrary to 14 C.F.R. § 13.214(b)(1). 
The FAA has asked for a declaratory ruling regarding the status of its order 

assessing a $2,500 civil penalty for violations of 49 U.S.C. § 46318 and 14 C.F.R. 

§ 121.580 in the second civil penalty action against Keller. This request must be rejected 

because neitiier 49 U.S.C. § 46301(d)(7) nor 14 C.F.R. § 13.233 autiiorize tiie 

Administrator to issue a declaratory judgment pertaining to an order assessing civil 

penalty issued by the FAA in a civil penalty action that is not the subject of an appeal. 

T^^^^i ^ i^i^M. ^ 

J. RANDOLPH BABBITT 

ADMINISTRATOR 

Federal Aviation Administration