' 'l U.S. DEPARTMENT OF TRANSPORTATION 

# RECEIVED

.. ... ·· ........ "()FFICE OF HEARINGS

FEDERAU**AVfATIONA~MINISTRATION** 

## JUN 102014 

## HEARING DOCKET

FEDERAL AVIATION AI)MINISTRATION, ' ' .'-\: 1 ·r ·, , r Complainant, •· · ' , · vs. ' .· .. '· TYLERPENNYWITT, Respondent. ·:,,-·

DocketNo
..FAA<.WB-0716 FAA Case No. 20d.SOI5bl28
Judge Sullivan
REPLY IN SUPPORT OF MOTION FOR SUMMARYJUDGMENT AND RESPONSE IN OPPOSITION TO MOTION TO DISMISS The FAA hereby replies in support of its Motion for Summary Judgment in this case. Respondent's Response in Opposition to the Motion for Summary Judgment discloses no genuine issues of material fact, and the FAA is entitled to judgment as a matter of law. Additionally, Respondent's Motion to Dismiss on doublejeopardy grounds is misplaced, and is due to be denied
.

.Inthe FAA's Motionfor Summary Judgment, the FAA presented evidence demonstrating that Respondent had committed the violations alleged in the Complaint, and that the penalty imposed was appropriate pursuant to the FAA's special emphasis enforcement program to combatthe rising incidence oflaser pointer interference with aircraft operations. Inhis Motion to ·Dismiss and Response to .Motion for Summary Judgment, the Respondent does not deny that he \' ' .. - - committed the violation, or present any evidence to contest the violation. Accordingly, the FAA is entitled to summary judgment as to the allegations in the Complaint Further, while Respondent asserts

### ~e~erail{'his ·personal .belief that a felony conviction is in and of itself

1sufficient punishment for his conduct, he does not address the FAA's sanction policies or the aviation safety problems caused by his conduct. Respondent's conduct violated both criminal and civil laws. While Respondent may personally believe that the appropriate consequence for his actions is the lowest possible sanction for his criminal violation and no sanction at all for his civil violation, he has not presented any evidence or argument that supports such a drastic and lenient position. Accordingly, the FAA is entitled to summar; judgment as to the amount of sanction. Rather than addressing the fact of violation or presenting evidence with regards to sanction, the Response primarily focuses on Respondent's argument that the Double Jeopardy Clause bars this civil action. In support of his argument, Respondent cites to one case and presents a "factual" history ofthis proceeding and his criminal case. However, the one case he cites has been overturned, and the history would largely be irrelevant even if it was entirely accurate. Respondent relies on UnitedStates v. Halper, 490 U.S. 435 (1989). See Response at 4-5. However, the holding inHalper has since been overturned. InHudson v. UnitedStates, 522 U.S. 93 (1997), the Supreme Court noted that the opinion in Halper deviated from the Court's traditional Double Jeopardy analysis in two ways, described Halpern's holding as "ill considered" and its standard as "unworkable." Hudson, 522 U.S. at 101-02. The Double Jeopardy Clause only applies to consecutive criminal charges for the same conduct, and has no application here. Additionally, Respondent spends the majority ofhis Response presenting a history ofhis criminal and civil cases. In broad terms, Respondent describes how he and his attorney decided to deliberately ignore the civil proceedings against him, apparently in an effort to set up the



### 2current meritless double jeopardy challenge, and complains that he has been denied a hearing and due process. Respondent also emphasizes what he seems to believe are sinister correlations between the processing ofhis criminal case and the processing ofthis case. As an initial matter, the majority ofthe detail provided is irrelevant. The application ofthe Double Jeopardy Clause does not turn on whether a civil investigation is coordinated in some way with a criminal investigation, and Respondent presents no argument or citation that it does. Further, as a factual matter, there was no coordination between the FAA's issuance ofthe Notice ofProposed Civil Penalty, the Amended Notice of Proposed Civil Penalty, the Final Notice of Proposed Civil Penalty, the Order Imposing Civil Penalty, 1 or the Complaint in this case. The undersigned was
unaware of the status of Respondent's criminal case until the undersigned was contacted by Respondent's attorney for the first time after the issuance ofthe Order Imposing Civil Penalty? The Respondent complains that he has not been afforded due process or a hearing, but he is being afforded due process and the opportunityto be heard in this proceeding before the Judge. In sum, the Respondent has not provided any defense as to the allegations in the Complaint, has provided a minimal and insufficient defense as to the penalty amount, and the Double Jeopardy Clause has no applicability here. The FAA respectfully requests that the Judge grant Summary Judgment and affirm the Complaint in its entirety, including the sanction

1As explained in the letter accompanying the Complaint inthis case, Respondent failedto successfully serve the requestfor ahearing on the undersigned. Accordingly, the FAAproceededto issue an Order Imposing CivilPenalty. The undersigned did notlearnthat a hearing requesthadbeen filed until afterthe issuance ofthe Order, when Respondent's attorney for the ftrst time contactedtheundersigned aboutthis case. Eventhen, theRespondent's attorney did not infonn the undersigned that a request for hearing hadbeenftled. Rather, the contactfrom Respondent's criminal attorneypromptedthe undersigned to, for the ftrst time, contactthe Assistant United States Attorney who was handling Respondent's criminal case. As a result ofthat contact, theundersigned was later providedwith a Motionftledby Respondentin his criminal case, which soughtto dismiss the criminal case, and which attached as an exhibitthe hearing request fromthis case. After confirmingthatthe hearing requesthad been successfully filed with the docket clerk, the FAA issuedthe Complaint based on the hearing request, despite the service defects in thatrequest. 2 See n.l. 3amount, or, alternatively, grant partial Summary Judgment to the extent deemed appropriate. Additionally, Respondent's Motionto Dismiss onDouble Jeopardy grounds is due to be denied.

## ·~ 

## cv Respectfully submitted**this~** day ofJune, 2014.

# /~~-­ 

# /{_

__/**=~** CHRISTOPHERR. STEVENSON Attorney Office ofthe Regional Counsel



### 4CERTIFICATE OF SERVICE Ihereby certifythat a copy ofthe foregoing Reply in Support ofMotion for SummaryJudgment and Response in Oppositionto Motionto Dismiss has been sentthis date bythe following methods: original and one copy via certifiedmail: Federal AviationAdministration 800 Independence Avenue, S.W. Attention: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2W1000 Washington, D.C. 20591
one copy via certifiedmail: Tyler Pennywitt 4483 HanoverPark Drive Jacksonville, FL 32224 Honorable Judge J.E. Sullivan Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 fax: (202) 366-2131



## f!JUN 

# i;.. 6 2014 Dated



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