## u.s. DEPARTMENT OF TRANSPORTATION 

# RECEJVED FEDERAL AVIATION ADMINISTRATION
FEDERAL AVIATION ADMINISTRATION ) ) ) ) ) ) ) ) ) ) ) 

## NOV 2 I 2012 

## !HEARING DOCKET Complainant,
v. DocketNo. CPlOWP0010 FDMS No. FAA2010-0628 Hon. Ronnie A. Yoder BRIAN WALLAESARespondent
COMPLAINANT'S REPLY BRIEF Pursuant to section 13.233(e) ofthe Ru1es ofPractice, 14 C.P.R.§ 13.233(e), Complainanthereby submits this reply brief. STATEMENT OF THE CASE OnFebruary 25, 2010, the Complainant issued its Notice ofProposed Civil Penalty. In that document, the Complainant stated that on or about November 6, 2009, Respondent was a passenger on board Southwest Airlines flight 3049, operating from Baltimore, Maryland to Las Vegas, Nevada. Itwas allegedthatthe flight was operated underpart 121 ofthe Federal Aviation Regu1ations. The Complainant allegedthat a passengerbriefingpriorto the flight advised passengers ofthe regu1ations requiring compliance with crewmemberinstructions during flight. Itwas allegedthat when the seatbelt sign was illuminated, the Respondent was asked several times bythe crewmembers to take his seat, but that he refused. The Complainant alleged that Respondent's conduct interfered withthe performance ofcrewmember duties and the

1Complainant stated that it appeared that Respondent violated 14 CFR section 121.580. The Complainantproposedto assess a civil penalty in the amount of$5,500. On or about April 5, 2010, Respondent had a telephone conversation withNaomi Tsuda, who is the FAA's Regional Counsel for the Western Pacific Region. During that telephone conversation, Respondent requested an informal conference at FAA headquarters in Washington, DC. In a letter, dated April 7, 2010, Ms. Tsuda informed Respondent that she noticed that inissuing the original Notice ofProposed Civil Penalty, allegations about two violations (sections 121.317(f) and 121.317(k)) were inadvertently omitted. Ms. Tsuda, onthat same day, issued an AmendedNotice ofProposed Civil Penalty, in which she added the two additional regulatory citations, however, the factual allegations andthe proposed civil penalty amount remained the unchanged. See AttachmentA, whichis a copy ofMs. Tsuda's April 7, 2010 letter as well as the AmendedNotice ofProposed Civil Penalty, date April 7, 2010. On or about April23, 2010, Respondentparticipated in an informal conference with FAA attorney James Conneely. See the first page, first paragraph ofAttachment B which is the FinalNotice ofProposed Civil Penalty. OnJune 14,2010, the Complainant issued its Final Notice ofProposed Civil Penalty in whichthe Complainant found the facts as originally alleged inthe Notice and AmendedNotice. The Complainant cited Respondent with violating the three regulations (121.317(k), 121.317(f) and 121.580) and proposed a civil penalty of$5,500. On or about July 13,2010, Respondent requested a hearing. On July 28,2010, the Complainant filed its Complaint inthis matter. The case was assigned to Chief Administrative Law Judge Ronnie A. Yoder.



### 2Discovery was conductedby the parties. Moreover, ChiefALJ Yoder held three pre-hearing teleconferences with the parties on or about October 18, 2011, March 2, 2012, and March 16,2012. A hearing was held before ChiefALJ Yoder on May 22, 2012 in Washington, DC. At that hearing several witnesses testified for the Complainant. Several exhibits were admitted into evidence, including the video deposition (Complainant's C-3) and the deposition transcript (C-2) ofMs. Jaime L. Tomchik, who
was unavailable to testify onMay 22, 2012, but who was the focus ofRespondent's unwanted attention, comments and touching during the flight onNovember 6, 2009. At the close ofthe hearing, ChiefALJ instructed the parties to submitpost-hearing briefs. The parties submitted post-hearingbriefs to Judge Yoder in the mid-summer of2012. ChiefALJ Yoder issued a written decision inAugust 2012. In that decision, he affirmed the Complainant's factual allegations and he affirmed that Respondent violated the three regulations cited inthe Complaint. ChiefALJ Yoder, reduced the amount ofthe civil penalty from $5,500 to $3,300. Respondent filed a timely Notice ofAppeal and a timely Appeal Brief. STATEMENT OF THE FACTS Jaime L. Tomchik testified, by deposition in this matter, onApril30, 2012 in Annapolis, Maryland. The deposition was both videotaped andtranscribed (Exhibit C-3 and Exhibit C-2). Mr. Wallaesa, the Respondent, was present for the deposition and conducted cross-examination ofMs. Tomchik. See Exhibit C-2 at pp. 24-31. Ms. Tomchik testified as to the reasons for her unavailability as a witness for the hearing



### 3that was scheduledto be conducted inWashington on May 22, 2012. See Exhibit C-2 at pp. 5-7. Ms. Tomchiktestified that she was a passenger on Southwest Airlines flight 3049 from BWI airport to Las Vegas, Nevada onNovember 6, 2009. Exhibit C-2 at p. 7. She identified Respondent (who was at the deposition) as someone she saw on thatflight. Id. at pp. 7-8. She said that before November 6, 2009, she never met Respondent. Id. at 8. Ms. Tomchikmet Respondent in the line inthe boarding area for the flight at BWI. Id. She boarded the aircraft first and sat in the third row aisle seat on the captain's side ofthe aircraft. Id. at 9. Respondent came on board and sat at the window seat in the same row
as Ms. Tomchik. Id. Another passenger tookthe middle seat. Id. Before takeoff, Respondent asked the passenger inthe middle seat ofrow 3 if they could switch seats. Id. at 10. Respondentmoved to the middle seat nextto Ms. Tomchik who was in the aisle seat. Id. at 10. Ms. Tomchikbegan to read her Harry Potterbook. Id. at 11. She testifiedthat Respondent asked her what she was reading and that Respondent said, "Oh, you're not reading some kind ofromance novel?" Id. Later, after Respondent was returning to his seat (after using the lavatory), Respondent tapped Ms. Tomchik onthe shoulder and asked ifshe would mind ifhe put his arm around her. Id. She testified that she toldhim that she would mindifhe did that andthat [his request] was weird and [made her] uncomfortable. Id. He responded, "Uncomfortable?". She said, "Yeah, I don'tknow you and had already told you that I had a boyfriend." She testified that he responded, "
... I don't care ifyou have a boyfriend." Id.



### 4She testified that she positionedherselfin her seat as close to the aisle (and as far away from the middle seat) as possible. Id. at 12. Ms. Tomchik was then listening to music on her iPod when she sensed that Respondent was staring ather. Id. at 13. She noticed that the armrest between the two seats had been raised and that Respondent was sitting close to her. Id. She asked Respondentto stop starring. Id. He responded, "Oh, I can't- your hair and eyes arejust so beautiful." Id. She told him to stop starring. Id. Later, Respondent tapped her onthe shoulder again and said, "I'm going to ask you a question and it might sound kind ofcorny." Id. Ms. Tomchikresponded, "
..then don't ask me. Don't ask me anything. I already told you I'm not interested. I have a boyfriend." Id. She said that Respondent, nonetheless said, "
...I was wondering ifyou would do me the honor orthe pleasure - I don'tknow which word it was - ofletting me hold something beautiful today." Id. Atthatpoint Ms. Tomchik had had enough. She left her seat to find a middle seat somewhere else out ofRespondent's sight. Id. at 14. She went one rowup- and to the co-pilot's side ofthe airplane- and switched seats with another passenger. Id. As soon
as she took her new seat, she hitthe flight attendant call button. Id. at 15. She informed
a female flight attendant (Wendy Moorman) 1 about what hadhappened and the flight attendant asked herto make a written statement on a pad ofpaperprovided bythe flight attendant. Id. See also Respondent's Exhibit R-1 for a copy ofMs. Tomchik's written statement.

1 Ms. Tomchiktestified that she knew Flight Attendant Moorman's name because they bothtestified against Respondent inthe [criminal] case that was brought against him in Las Vegas. Exhibit C-2 at p. 15. There are other documents intherecord, and discussions in the transcribed pre-trial teleconferences regarding the criminal trial. Respondent was acquitted ofthe criminal charges. 

### 5Ms. Tomchik saw Ms. Moorman go over to talk to Respondent. Exhibit C-2 at p. 16. Ms. Moormantook Ms. Tomchik to the forward galley area andtold her that Respondent said he was in "awe" ofher andjustwanted to talk to her again. Id. Ms. Tomchik said "no" means "no" and that she wanted him to leave her alone. Id. Ms. Tomchikreturned to her seat and observed the flight attendant talking to Respondent. Id. at 

### 17. Sometime later, Respondent walked upto her row and leaned over the passenger (in the aisle seat) seated next to Ms. Tomchik in order to speak to Ms. Tomchik. Id. at 

### 18. She told him to get away from her. Id. Ms. Tomchik said that the male passenger seated onher other side started to get up to move Respondent away, when the flight attendant came up and told Respondentthat he was told to leave Ms. Tomchik alone. Id. At that point, Ms. Moorman moved Respondent toward the rear ofthe aircraft. Id. at 19. Later, Ms. Tomchik saw Respondent moving toward the front ofthe aircraft"
.. like a man on a mission
..." Id. at 19. She saw the flight attendants come up to Respondent and another gentleman (who she identified as an AirMarshall- butwho was actually FBI AgentMollica). Id. She saw a scuffle up front. Id. at20-22. She then saw Ms. Moorman coming toward her and gesturing that she (Tomchik) was to move to the
rear ofthe aircraft. Id. at 22. She was toldthat she was being moved to the rear ofthe aircraft so that they could keep Respondent at the front ofthe aircraft and "gethimunder control." Id. at 23. Ms. Wendy Moorman, who was a flight attendant onthe SouthwestAirlines flight from BWIto Las Vegas onNovember 6, 2009, testified that after takeoff, she was



### 6summoned to row 2 by a female passenger who said she was being harassed by a male passenger (Respondent). Tr. 17-18. Ms. Moorman had Ms. Tomchik, the female passenger, write down what happened. Tr. 18. The three flight attendants discussed the situation and decided to bring Respondent to the rear ofthe aircraft to discuss the matter. Tr. 19. Ms. Moorman said that Ms. Tomchik had toldher (and had written) that Respondent said inappropriate things and had touched her. Tr. 25. Indiscussing the matter withthe three flight attendants at the rear ofthe aircraft, Respondent told the flight attendants thathe did not say any inappropriate things. Tr. 29. Buthe told Ms. Moorman that he (Respondent) "loved her [i.e., Tomchik] and that she was the one for him." Id. Ms. Moormantestified that she and the other flight attendants instructed Respondent to return to his seat, stay seated and to refrain from talking with Ms. Tomchik. Tr. 32. Later, Ms. Moorman noticed that Respondent was out ofhisseat and at Ms. Tomchik's rowofseats leaning over another passenger in order to talk to Ms. Tomchik. Tr. 33. Earlier, Ms. Moorman, 

### at Respondent's request, asked Ms. Tomchik if Respondent couldtalk to her and Ms. Moorman saidthat Ms. Tomchik said "absolutely not." Tr. 34. Ms. Moorman had told Respondent that Ms. Tomchik did not want to talk to him. Id. Seeing Respondent at Ms. Tomchik's row, Ms. Moorman approached Respondent and instructed himto go to the rear ofthe aircraft. Tr. 36. He responded that he did not wantto go there. Id. Ms. Moorman repeated that she wanted Respondent to go to the rear ofthe aircraft. This time he complied. Id. At the rear ofthe aircraft again, he was told- again- to leave Ms. Tomchik alone. Tr. 38. Ms. Moorman said that Respondent appeared agitated and angry. Id. She



### 7said he was red-faced and teary-eyed. Id. Atthat point, the flight attendants decided to reseat Respondent from the front ofthe aircraft to the rear ofthe aircraft inrow 18. Tr. 39. Sometime later, the Captain illuminated the fasten-seatbelt sign and he called the flight attendants to tell them to take their seats Gumpseats) as they were approaching Las Vegas because it was going to get bumpy (turbulent). Tr. 41. Ms. Moorman took her rear-facing flight attendantjumpseat at the front ofthe cabin. Id. She saw Respondent getup and quickly come up toward the front ofthe aircraft. Id. She got out ofher seat to stop him as another flight attendant, Robert Dumond, was following Respondent up the aisle. Id. Both the flight attendants stopped Respondent at about row 5 or 6. Id. They asked himto return to his seat and pointed out that the fasten seat-belt sign was illuminated. Id. Ms. Moormantestified that Respondent "refused" to return to his seat. Id. So the flight attendants moved Respondentto the forward galley area. Tr. 43, Told him againthathe had to return to his seat. Id. He refused. Id. Ms. Moorman called the Captainto let himknow what was going on. Id. She told the Captainthat the flight attendants were out oftheir seats. Id. The Captain inquired about the whereabouts ofthe off-duty FBI agent. Id. Whenthe flight attendants told the Captainthat they needed help dealing with Respondent, he told them to getthe FBI agentto come up front and intervene. Id. Ms. Moorman gestured toward FBI Agent Mollicato come forward. Tr. 43-44. He came forward and attempted to diffuse the situation. Tr. 45. While the FBI agent was talking to Respondent, Ms. Moormantook actionto move Ms. Tomchik to the rear ofthe



### 8aircraft. Tr. 45. Ms. Tomchik was moved to row 18 where the Respondent had been reseated earlier. Tr. 46. Ms. Moorman thought the situation was escalating at the front of the aircraft and decided to move Ms. Tomchik away from the front. Id. She felt it was an escalating situationbecause the Respondent kept telling the FBI agent that he (the Respondent) wanted to talk to "Jaime" (Tomchik). Tr. 47-48. She heard the FBI agent tell the Respondent that he had to comply and that ifhe did not comply, he would be handcuffed. Tr. 48. The Respondent continued to refuse to return to a passenger seat. Id. Ms. Moorman said that she saw and heard the FBI agent tell the Respondent to turn around so that he couldbe handcuffed. Id. The Respondent refused. Id. He was told again to tum around and he finally complied and he was handcuffed. Id. Atthatpoint, the Respondent started yelling toward the passenger cabinthathe "loved Jaime" and that the flight attendants were keeping him away from her. Tr. 49. Ms. Moorman said she observed FBI Agent Mollicatrying to bring the Respondent backto row 3 (where the flight attendants had cleared out all ofthe other passengers) so that the Respondent and the agent would be alone inthat row. Tr. 49. The Respondent would not sit down, so Agent Mollicahad to pushhim into the seat. Tr. 50. She testified thatthe fasten-seat belt sign was illuminated during the entire time that the FBI agent was trying to help the flight attendants deal withthe Respondent. Tr. 54 Upon arrival in Las Vegas, the aircraftwas metby lawenforcement officials. Tr. 51. The captainhadradioed ahead to make sure lawenforcement officers metthe airplane atthe gate. Id. Ms. Moormantestified thatthe Respondent never said that he was on any kind of medication and thathe never said that he needed any kind ofmedical assistance. Tr. 52.



### 9Ms. Moormantestified that Southwest Airlines had provided her with training in conflictresolution. Tr. 56. She testified that while she and the other flight attendants
were dealing with the Respondent, they could not monitorwhether other passengers needed assistance. Tr. 58. Mr. Robert Dumond, was also a flight attendant onthat flight. Tr. 68-70. He identified the Respondent incourt as the same person who was a passenger onthe flight. Id. His testimony is substantially the same as Ms. Moorman's testimony in terms ofthe sequence ofevents that transpired with Respondent. Tr. 70-76. However, in additionto the events that Ms. Moorman described, Mr. Dumond also testified as follows: He testified that after Respondent hadbeenreseated in row 18, he noticed Respondent get out ofhis seat and Respondent told him (Dumond) that he (Respondent) wanted to talk with Ms. Tomchik. Tr. 75-76. Dumond told Respondent, "Well, youhave got to sit down." Tr. 76. He testified that Respondent wantedto talkto flight attendant Wendy Moorman. Id. Dumond informed Moorman ofRespondent's request, but she was busy doing otherthings atthe time and could not talkto him. Id. Later, he saw Respondent get up to use the rear lavatory. Tr. 77. On his way back from the lavatory, he went past his seat and continued moving toward the front of the aircraft. Id. Dumondtestified thathe told Respondent that he needed to stay seated inhis seat and could not go forward and that he need to stay seated with his seatbelt on. Id. Dumond testified that at this point, Respondent was between him (Dumond) and the
rear ofthe aircraft. Id. After being told to return to his seat, Respondent sat down,"
... then got up again." Tr. 78. Dumond testified that he told Respondent, "I am going to tell you one more time, this is it, you have to stay seated." Id. Dumond testified that



### 10Respondent did not seem to be focusing on what he was being instructed to do, but instead was focused on doing what he wanted to do. Id. Dumondtestified that about an hour outside ofLas Vegas, the Captain told the flight attendants that the flight attendants had to be seated because the Captain was expecting turbulence. Tr. 79. Shortly thereafter, while the fasten seatbelt sign was illuminated, Respondent got up again and quickly started walking to the front ofthe aircraft. Tr. 79-80. Dumondpursued Respondent. Id. Dumondtold Respondent "You need to sit down." Id. Dumond caught up with Respondent at around row 5 or 6. Respondent said he didn't want to sit down and that he wanted to "talkto her." Dumond grabbed Respondent bythe arm. Id. Dumond testified thathe waived for Agent Mollica to come forward. Tr. 81. Moorman, Dumond and Mollicathen moved Respondent to the forward galley. Dumond stood in front ofthe cockpit door wile Mollica and Moorman were talking to Respondent. Tr. 83. All three (Dumond, Mollica and Moorman) told Respondent thathe had to sit down. Tr. 84. Respondent indicated that he didn't want to sit down. Tr. 85. Dumondtestified that he thought Respondent understood what he was being told to do, butthat Respondent simply did not want to comply. Id. Dumond's testimony regarding moving other passengers around so that Agent Mollica and Respondent couldbe putina row by themselves, is substantially the same as Ms. Moorman's testimony. Tr. 85-87. However, he said that Respondent told himthat he wanted to use the PA system (Public Address System). Dumond, Moorman and Mollica said "no." Id.



### 11Mr. Dumond testified that as FBI Agent Mollicawas first bringing Respondent backto a seat, Respondent started yelling that "I am so sorry, I found the one that I love." Id. Mollicatold Respondent to be quiet. Id. As Mollica got Respondent near row 3, Respondent bucked back towards Mollica, which cause Mollicato physically lay Respondent down inthe row. Tr. 88. Mr. Dumondtestified about why it was important for passengers to comply with the fasten seatbelt sign. Tr. 90-92. FBI Agent James Mollicatestified that he was onboard the flight. Tr. I04-l06. He testified thathe had handcuffs with him and an asp (a six-inch expandable baton) and
a firearm. Tr. 105. Agent Mollica's testimony inregard to his interactions withthe Respondent was substantially the same as the testimony ofthe two flight attendants. Tr. I06-1!0. He explained howhe tried to diffuse the situation. Tr. I08. Whenthose efforts did not work, he advised the Respondent that since he (Mollica) was a law enforcement officer "you can do this the easy way orthe hard way." Tr. I09-ll0. The easy way would have beenfor Respondent to sit in a cleared row ofseats for the rest of the flight with Agent Mollica. The hard way would be Respondent finishing the flight in handcuffs. Id. Respondent didn't care andjustwanted to talk to "Jaime." Tr. II0. Mollica said that Respondent's eyes were wide open (while being handcufied) and that Respondent was in "attackmode" and that he was ready to do something stupid. Tr. Ill. Mollicatestified that Respondent never said he was onmedication and never said he needed medical assistance. Id. When Respondent started yelling,Agent Mollica told him to be quiet because he
was causing a disruption. Tr. 113. He described when Respondent bucked back against



### 12him and Mollicadescribed the situation as "I was fighting withhim." Tr. 114. He testifiedthat Respondent is bigger than he is in terms ofheight and weight. Tr. 116. Mollica explained his other concerns while struggling with Respondent. Tr. 116. He said that a couple ofpassengers hadjumpedup to assist him in dealing with Respondent. Tr. 117. He testified that once handcuffed and forcibly seated, Respondent said "Take you gun out and shoot me, it is all over for me, push me offthe plane, I don't want to go on." Id. WilliamDriscoll, who is an FAA inspector, testified for the Complainant. Tr. 123-124. He has over 9000 hours offlight experience, including 12 years as a pilot for United Airlines in737s and A-319 and A-320 aircraft. Tr. 124. Inspector Driscoll
was in attendance atthe deposition ofMs. Tomchik and he provided foundational evidence for the admission ofthe depositiontranscript and video. Tr. 127-128. InspectorDriscoll testified that as an airline pilot, during the enroute portion ofa flight, the flight crewmembers are supposedto remain diligent and look for other aircraft inthe area as well as monitoring aircraft systems and communicating with AirTraffic Control. Tr. 127-128. Inregard to the testimony providedby the flight attendants that the Southwest Airlines Captain was contacted by the cabin crewto be advised ofthe situation withthe Respondent, Inspector Driscoll testified that it would increase the pilot's work load. Tr. 129-130. He said the calls with the flight attendants to deal with this situation could be distracting to the pilotflying the aircraft and it might distract the flight crew from listening to ATC communications. Id. Respondent testified. Tr. 134. He said he talked to Ms. Tomchik shortly before boardingthe flight. Id. He testified that hereceived a free complimentary alcoholic



### 13drink onboardthe aircraft. Tr. 135. He testified that when he got up from row 18 to
move to the front ofthe aircraft, he was looking to talk to Ms. Moorman. Tr. 136. He testified that he did not remember a lot ofthe details ofthe flight. Id. On cross-examination, Respondent was confronted withhis own written statement concerning the events ofthe flight. See Exhibit C-4 ant TR.139-141. That exhibit contains a lot ofdetails about the Respondent's interactions with Ms. Tomchik and others during the flight. Onquestions from thejudge, Respondenttestified that he had been taking medication for anxiety and depression. Tr. 145. He testified that before this flight, he hadbeen onPaxil for a year and a half. Tr. 145. He said thathe was having a panic attack. Tr. 146. He said talking to Jaime made him feel comfortable. Tr. 146. He admitted thathe had no medical evidence that he was having a medical emergency during the flight. Tr. 148. ISSUES 1. Whetherthe absence ofany reference to FAA Order 2150.3B (in terms of sanction guidance) in 14 C.F.R. § 13.16 or Subpart G to Part 13 or inany ofthe correspondence with Respondent means that Respondent is not subject to a civil penalty? 2. Whether the civil penalty statutory authorization in 49 U.S.C. § 4630l(a)(5)(A) [which provides that
... an individual
... is liable to the Gove=entfor a civil penalty
...] as it relates to violating chapter 447 ofTitle 49, covers this situation?



### 143. Whether the FAA, in amending the notice ofproposed civil penalty to add two regulatory violations -butnot to change any ofthe factual allegations or sanction amount sought- threatened Respondent with a higher civil penalty? 4. Whether the Complainant's motion for a protective order regarding Ms. Tomchik's whereabouts (address etc...) was a tactic to intimidate Respondent? 5. Whether a preponderance ofthe evidence supports the finding that Respondent violated each ofthe cited regulations, including the regulations that forbid people from interfering with a crewmember's duties? 6. Whether short shrift should be given to Respondent's argument that because the FAA does not charge a sick or injured passenger - who mightbe out ofhis seat during a medical emergency and who might have the focus ofone or more members ofthe crew- with illegally interfering with crewmember duties, then, somehow, his conduct should be excused? ARGUMENT 

### I. Respondent is subject to a civil penalty notwithstanding the absence ofany reference to FAA Order2150.3B in Part 13 and notwithstanding the absence of any reference to that Orderin any correspondence with Respondent. Section 4630l(a)(5)(A) ofTitle49 ofthe United States Code is the authority under which the FAA may assess a civil penalty against a person, like Respondent, who interferes with crewmembers. That section authorizes a maximum civil penalty of $10,000 (now adjusted to $11,000) per violation under chapter 447 ofTitle 49 ofthe United States Code. FAA Order 2150.3B provides FAA personnel with guidance on the appropriate level ofpenaltywithin, butnot outside of, the confines ofsection 4630l(a)(5))(A), as applicable to this case. FAA Order 2150.3B allows a "maximum"



### 15civil penalty, i.e. $11,000 under section 46301(a)(5)(A), for Respondent's violation of 14 C.P.R.§ 121.580. FAA0rder2150.3B,Fig. B-3-p,AppendixB,pageB-28. The FAA assessed a total civil penalty of$5,500 against Respondent, not only for his violation of section 121.580, but also for his violation ofsections 121.317(£) and (k). This penalty
was well withln the confines of49 U.S.C. § 46301(a)(5)(A). Thus, Respondent's apparent beliefthat Complainant used FAA Order 2150.3B to deviate from the governing statutes and regulations when it assessed the civil penalty is unfounded. It is the U.S. Code provisions that authorize the FAA and the Administrator to impose a civil penalty against the Respondent. The sanction guidance in FAA Order 2150.3B isjustthat: i.e., sanction guidance on how agency personnel should weigh the facts and circumstances of certain conduct in view ofcertain regulatory violations. The proposed penalty of$5,500
was bothwithin the range authorized by statute and withlnthe range provided inthe sanction guidance found inFAA Order 2150.3B.

2. The civil penalty statutory authorization in 49 U.S.C. § 46301(a)(S)(A) [which provides that
... an individual
...is liable to the Government for a civil penalty...] as it relates to violating chapter 447 ofTitle 49, applies to this case. Complainantunderstands Respondent to argue that 49 U.S.C. § 4630l(a)(5)(A) authorizes the FAAto assess a civil penalty against individuals or entities regulated by the FAA, butthat Respondent, as a passenger and a non-certificate holder, falls outside the scope section4630l(a)(5)(A) and consequently, he falls outside the scope ofthe FAA's civil penalty authority. Respondent's argument is without merit. Passengers on board aircraft are regulated by the FAAbecause their conduct canjeopardize the safety of the flight and thus everyone on board.



### 16Congress, inTitle VI, section 60l(a)(6) ofthe Federal Aviation Act of 1958, gave the FAAthe following authority: The Administrator is empowered and it shall be his duty to promote safety of flight ofcivil aircraft in air commerce byprescribing and revising from time to time:
... (6) Suchreasonable rules and regulations or minimum standards, governing other practices, methods, and procedures, as the Administrator may fmd necessary to provide adequately for national security and safety in air commerce. Federal Aviation Act of 1958 § 60l(a)(6). In 1961, the FAA, by the authority granted to it by Congress in section 601 ofthe Federal Aviation Act of 1958, quoted above, promulgated what is now 14 C.P.R.§ 121.580 as Special Civil Air RegulationNo. SR-448. 26 FR 7009 (Aug. 4, 1961). The preamble plainly states that SR-448 applied to passengers. 2 Further, Congress, in Title IX, section 90l(a)(l) ofthe Federal Aviation Act of 1958, grantedthe FAAthe authority to assess a civil penalty against "[a]ny person who (A) violates anyprovision oftitle III, IV, V, VI, VII, orXII
... or any rule regulation, or order issued thereunder." Federal Aviation Act§ 90l(a)(l). The regulatory history shows that the FAApromulgated SR-448, the precursor to 14 C.P.R. § 121.580, underthe authority that Congress granted to the FAA in Title VI ofsection 601 ofthe Federal Aviation Act of 1958 to prescribe "reasonable rules and regulations" to promote safety offlight.3 Furthermore, in section 901, Congress explicitly authorized the FAAto assess a civil penalty against a personwho violates a

2 Inthe preamble, the FAA stated that "[t]herecent hijackings ofair carrier aircraft have highlighted a necessity to provide additional controls overthe conduct ofpassengers in order to avoid a serious threat to the safety offlights andpersons aboard them
... The regulation being adopted will also make it a violation ofthe CARs for any personto assault, threaten, intimidate, or interfere with a crewmemberinthe performance ofhis or her duties aboard an air carrier aircraft." 26 FR 7009 (Aug. 4, 1961). 3 For an explanation ofhow the language ofSR-448 was adopted in 14 C.P.R.§ 121.580, see64FR 1076-78 (Jan. 7, 1999).



### 17regulation issued under Title VI ofSection 601. Federal Aviation Act of 1958 § 90l(a)(l). Section 601(a)(6) ofthe Federal Aviation Act of 1958 has since been codified at 49 U.S.C. § 44701(a)(5). 4 Section 901(a)(1) has since been codified at 49 U.S.C. § 46301. The United States Court ofAppeals for the Fifth Circuitrecognized the FAA's authority to promulgate the anti-interference regulation under the authority granted to itby Congress: The complaint alleged that Kilpatrick violated a Federal Aviation Regulation. This regulation provides that "[n]o person may assault, threaten, intimidate, or interfere with a crewmember in the performance ofthe crewmember's duties aboard an aircraft being operated." 14 C.P.R.§ 91.8(a) (1984). 5 This regulation was promulgatedpursuant to subchapter VI ofthe Federal Aviation Act, which empowers the Administrator ofthe Federal AviationAdministration to prescribe "[s]uchreasonable rules and regulations, or minimum standards, governing other practices, methods, and procedure, as the Administrator may find necessary to provide adequately for national security and safety in air commerce." 49 U.S.C. § 1421(a)(6). United States v. Kilpatrick, 759 F.2d 1250, 1251 (5th Cir. 1985). The court went onto state that: The Administrator has also promulgated specific enforcementregulations for the collection ofcivil penalties imposed pursuant to 49 U.S.C. § 1471(a)(1): (a) Under section 901 ofthe Federal Aviation Act of 1958 (49 U.S.C. 1471), a person who violates any provision ofTitle III, V, VI, or XII ofthat Act, or any regulation or order issued under one ofthose titles, is subject to a civil penalty ofnot more than $1,000 for each violation. Kilpatrick, 759 F.2d at 1252.

4 Section44701(a)(5) states: "(a) PROMOTING SAFETY.- The Administrator ofthe Federal Aviation Administration shall promote safe flight ofcivil aircraft in air commerce by prescribing - (5) regulations and minimum standards for other practices, methods, and procedure the Administrator find necessary for safety in air commerce and national security."
5 Former section 91.8(a) ofthe Federal Aviation Regulations has beenrenumbered. The regulatory language found in former Section 91.8(a) can nowbe found in section 91.11. The prohibition oninterfering with crewmembers can also be found in other sections of the regulations including, sections 135.20, 125.328- and as relevant and applicable to this case- section 121.580. 

### 18Clause (ii) of49 U.S.C. section 4630l(a)(5)(A) provides a civil penalty
... for an individual who violates "
...a regulation prescribed
... under [a] provision to which clause (i) applies." Clause (i) ofthat section specifically lists chapter 447 ofTitle 49 ofthe U.S. Code. Section4470l(a) is part ofchapter 447 ofTitle 49 U.S.C. 6 In sum, the FAA determinedthat Respondent violated 14 C.P.R. section 121.580, a Federal Aviation Regulation validly promulgated under the authority oflong-standing statutory language that has beenrenumbered and is presently codified at 49 U.S.C. Section4470l(a)(5). Having found that Respondent violated section 121.580, the FAA assessed a civil penalty against Respondent under the authority of49 U.S.C. 4630l(a)(5)(A). 7



### 3. The FAA, in amending the notice ofproposed civil penalty to add two regulatory violations - but not to change any ofthe factual allegations or sanction amount sought - did not "intimidate" Respondent with a higher civil penalty.

6 Priorto 1994, many aviation laws, like the Federal AviationAct of 1958, were not formally part ofTitle 49 ofthe U.S.C. Instead, they were statutes at large while others could be found in appendices to Title 49. In 1994, when Congress codified most aviation laws into Title 49, whichresulted innew section numbers and the rearrangement ofsome statutoryprovisions, Congress did"
...not intend[] to have any substantive effect on the law. See Attachment Cat *asterisk. Thus, a rule promulgated under section 601 ofthe Federal Aviation Act of 1958 (current section 4470l(a) ofTitle 49) was promulgated under statutory language that was merelyreorganized andrenumbered into the current 49 U.S.C. section 4470l(a). The court in Kilpatrick clearly recognized this ideaby discussing the relevant sections ofthe Federal Aviation Act of 1958 and the thenparallel sections of49 U.S.C., i.e., 1421 and 1471. In 1985, when Kilpatrickwas decided, those sections (1421 and 1471) were in the appendix to 49 U.S.C. and reference and citations to those sections should include the "appendix" reference, to wit: 49 U.S.C. App. Sections 1421 and 1471. In 1994, as part ofthe codificationproject, those sections (1421 and 1471 ofthe Appendix to Title 49) were renumbered as sections 44701 and 46301 respectively. 7 The same statutory structure authorized the FAA to assess a civil penalty against Respondent for violations of 14 C.P.R. 121.317(f) and (k). 

### 19Respondent argues that the FAAintimidatedhimby "adding charges and increasing the civil penalty fine." Respondent Briefat 8-9. Respondent's argument is without merit. Complainant's original notice ofproposed civil penalty alleged a violation of section 121.580 and proposed a civil penalty of$5,500. Before the FAAheldthe informal conference, Ms. Tsuda, realized that the original notice did not contain allegations thatRespondent's conduct also violated Sections 121.317(f) and (k). Therefore, onApril 7, 2010, Ms. Tsudaissued an Amended Notice to add allegations that Respondent's conduct violated Sections 121.317(f) and (k), butshe didnotchange any of thefactual allegations andshe didnot increase the amount of theproposed$5,500 civil penalty. Itjust so happens thatthe original factual allegations supported the two section 121.317 charges. The fact that Respondent could have been charged with up to $11,000 in civil penalty for each violation does not mean (and did not mean) thatthe FAA was increasing the proposed civil penalty at all. In Complainant's view, the $5,500 proposed civil penalty was, ifanything, relatively light in view ofthe repeated warnings andinstructions that Respondent was given. Most importantly, the original proposed civil penalty amount was relatively light and the ALJ'sreduction ofthe civil penalty amount was a

### giftto Respondent, especially inview ofthe danger he presented to everyone on that aircraft by interfering with both the cabin and flight crews interms ofconducting their normal duties. Infact, Respondent's irresponsible and self-centered actions distracted the cabincrewmembers from their normal duty ofmaking sure everyone remain seated during the air turbulence and while the fasten seatbelt signs were illuminated. His conduct not only distracted the



### 20flight attendants from generally monitoring conditions and other passengers in the cabin but it forced them to reseat some passengers to clear a row ofseats for the FBI agent to maintain direct control over the then handcuffed Respondent. The potential danger from this uncooperative-irresponsible passenger was not limited to the cabin crew, but instead hadto be broughtto the attention ofthe flight crew, which resulted in them being distracted from their normal duties offlying the airplane, monitoring and making radio communications withAir Traffic Control. His actions caused the Captain to call ahead to have law enforcement officers meet the airplane upon arrival in Las Vegas. Distracting the flight crew created potential danger for everyone on the flight. Respondent has ever-shifting theories to explain or excuse his conduct. He's claimed that he was offered an alcoholic drink.**See~,** Exhibit C-4. Analcoholic drink does not excuse Respondent's conduct. He claims that he had a medical emergency, yet the other on-board-witnesses eachtestifiedthathe nevermade a claim that he was on medication or had a medical emergency. He claims he had medication and a medical condition, buthe never provided any documentation to substantiate his assertions. This Respondent acted in a manner that ignored the rights and safety ofothers. If he wanted to talk ortouch Ms. Tomchik, he was going to dojustexactly that even ifthat meantrepeatedly defying the instructions ofthe cabin crew andignoring the fasten seat belt sign. Ifhe wanted to get out ofhis seat and talk to someone (whether it was Ms. Tomchik or Flight Attendant Moorman), he was going to do that. After being told bythe crewto return to a passenger seat and after being handcuffed by the FBI agent, he continuedto defy the instructions ofthe crew inasmuch as he pushed back onthe agent while he was being escorted downthe aisle to the row ofseats that had been cleared.



### 21Respondent was treated fairly throughoutthis matter, from those who interacted withhim onNovember 6, 2009, to the FAA attorneys who corresponded with him, to the FAA attorneys who litigated the case, to the ALJ who gave him every opportunity to raise arguments and offer evidence. The FAA did not attempt to intimidate Respondent.

4. The Complainant's motion for a protective order regarding Ms. Tomchik's whereabouts (address etc...) was not a tactic to intimidate Respondent. Respondent claims that the Complainant triedto intimidate himby filing a Motion For Protective Order (to keep Ms. Tomchik's address and other contact information confidential). Atthe end ofRespondent's fourth argument, he states that the Complainant was using intimidation tactics "
... by issuing the Motionfor Protective Order against the Respondent whenit has been proven through the testimony ofMs. Tomchik, the Respondent sought no further interactions with Ms. Tomchik after she actually voiced her desire to no longer speak to the Respondent." InviewofRespondent's statements onNovember 6, 2009 (everything from stating thathe was inlove with Ms. Tomchik, a womanhe hadjustmet inthe line to get
onboardthe aircraft, to his statements about his need to talk to Ms. Tomchik, to yelling his love ofMs. Tomchik to those in the aircraft cabin, to his request that the FBI agent just shoothim after he was handcuffed and forcefully placed into the empty rowofseats) andhis actions onNovember 6, 2009 (everything from his inappropriate and aggressive words and actions toward Ms. Tomchik, to repeatedly moving out ofhis seat to go toward Ms. Tomchik's seat, to refusing to return to his seat, to being combative with the FBI agent who hadplacedhandcuffs onhim), the FAAhad compellingreasons to ask the ALJto issue an order that would have kept Ms. Tomchik's address and other personal information confidential.



### 22For Respondent to assert that he "sought no further interactions with Ms. Tomchik after she actually voiced her desire to no longer speak to [him]" is- firstnot consistent withthe evidence inthis case. Ms. Tomchik got out ofher original seat and movedto another seat when she could no longertolerate Respondent's conduct. He
was toldby the flight attendants that she did not want to talk to him and most importantly he was told bythe flight attendant's to stay away from her. It seems, that Respondent's
own statement, quoted above, is quite revealing inthat it appears that then and nowhe did not and does not believe that he had to comply withthe instructions ofthe flight attendants until and unless he heard Ms. Tomchik say that she did not want to speak to him anymore. Itwas clear from the evidence in this case, that Respondent did not respect: (1) Ms. Tomchik's desires to be left alone; (2) the flight attendants' efforts to separate Respondent from Mr. Tomchik; (3) the crew's instructions (both verbal and viathe illuminated fasten seat belt sign) for Respondent to remain in his seat; (4) the crew's efforts to peacefully get him to return to his seat, and (5) the efforts bythe crew and the FBI agent to get himbackto a cleared-out row ofseats safely and without a struggle. Respondent's lack ofrespect for the law and for others were sufficient, legitimate bases for the Complainantto seek a protective order. Respondent's conduct indicated that he was not impressed with or influenced by several people, including anFBI agent who hadjusthandcuffed him. Nothing inthis record indicates that Respondent was intimidated or influenced or impressed with anything or anyone. The Complainant had bonafide bases to file a Motion for Protective Order in this case.



### 235. A preponderance ofthe evidence supports the finding that Respondent violated each ofthe cited regulations, including the regulations that forbid people from interfering with a crewmember's duties. Witness testimony demonstrates that Respondent's repeated failures to comply with crewmember instructions escalated from an annoyance to aninterference with crewmember duties. In this regard, Complainant disagreed with the ALJ's assertion that ' [a]ll this stuffabout interactionwithMr. Mollica, and communications with Ms. Tomchik are not directly relevant to that allegation." Tr. 156 A. Respondent's conduct preceding the final45 minutes ofthe flight was directly relevant to whether Respondent should be found liable for violating sections 121.317(f), 121.317(k), and 121.580 as cited in the Complaint. Complainant did not charge Respondent withthethree violations for his conduct precedingthe final45 minutes ofthe flight. 8 However, that conduct is relevant to establishing the motive for his noncompliance during the final 45 minutes, the escalating nature ofhis conduct and that he both understoodand was capable ofcomplying with crewmember instructions but chose to disregard the crew's instructions inthe laterparts ofthe flight. Ms. Tomchik's deposition and Respondent's written submission, "Testimony of Respondent" make clear that Ms. Tomchik was the recipient ofRespondent's unwanted verbal and physical attention. Exhibit C-2, pp. 11-16; see Exhibit C-4. After Ms. Tomchik initiallyreportedto Flight Attendant Moormanher attempt to escape Respondent's advances, Respondent complied with Ms. Moorman's instructions to go to

8 Testimony atthe hearing established that approximately 45 minutesbefore the aircraft landed, the flightcrew illuminatedthe fasten-seatbelt signbecause the aircraft was heading into turbulent air. Inthis brief, we will use this 45-minute period as the time frame within which Respondent violated the regulation cited inthe Complaint. 

### 24the back ofthe plane to speak with the flight attendants. Tr. 28. After Respondent returned to his seat in the third row, he again attempted to speakwith Ms. Tomchik. Tr. 33-34. Ms. Moorman interceded, and again asked him to returnto the back ofthe aircraft. Respondent at first refused, then complied reluctantly. Tr. 36-37. After the flight attendants reseated Respondent inrow 18, he attempted on several occasions to walkto the front ofthe aircraft. Tr. 41-42; 77-78. Eachtime Flight Attendant Dumond told him to sit downprior to the final 45 minutes ofthe flight, Respondent complied reluctantly. Tr. 77-78. While this testimony clearly establishes that Respondent was resistant and slowto respond to instructions to remain away from Ms. Tomchik orto remain in his seat withhis seat belt fastened prior to the final45 minutes ofthe flight, this
was not a situation where Respondent did not understand or was incapable ofcontrolling himself. Tr. 85, lines 10-13; 142-43. The evidence regarding the events preceding the last 45 minutes ofthe flight establishes that Respondent understood and was capable of complying withflight attendant instructions to remain seated and to refrain from contacting Ms. Tomchik. Thus, for example, Respondent cannot credibly claimthat some type ofmedical condition, for whichhe provided no documentation inthe record, preventedhim from comprehending instructions when the evidence demonstrates that: (I) he understood whenhe was initially told to come to the rear ofthe aircraft to discuss the matter; (2) he understood when the crewrequired himto be reseated near the back ofthe aircraft as a consequence ofhis attempt to contact Ms. Tomchik, against crewmemberinstructions, where she had reseated herself, and (3) he understood when Mr. Dumondtold himto



### 25return to his seat in Row 18 after he walked pasthis seat toward the front ofthe aircraft after exiting the aft lavatory. The evidence ofRespondent's conduct prior to the fmal45 minutes ofthe flight firmly establishes his motives and intentions toward the end ofthe flight. Specifically, when Respondent arose from his seat inthe back ofthe plane and walked "withpurpose" to the front ofthe plane inthe final45 minutes ofthe flight, this was not a situation where the Respondent was acting aimlessly or where he lacked lucidity orpurpose. Tr. 79-80. He had the goal in mind to communicate with Ms. Tomchik again. Tr. 80-81, 87, 109- 110, 142. His goal happenedto be at odds with Ms. Tomchik's preferences and most importantly, his goal was at odds with the cabin crew's goal ofpreventing conflicts among the passengers that had the potential oferupting into physical altercations. Tr. 117, 121; Exhibit C-2, page 18, lines 22-25. Respondent decided thathis goals were
more importantthan adhering to the instructions he received from the crew. See Tr. 147- 148. That evidence establishes that his goals were at odds withthe crew's safety goals. And, that evidence establishes that in the 45 minutes ofthe flight, he made a knowing choice to disregard the crew's instructions to sit down and fasten his seat belt when the sign was illuminated and by failing to do so, interfered with the crew's duties.9

9 Because the evidence establishedthat the flight deck crew caused the fasten seatbelt signto be illuminated, we submit that the flight crewwas communicating its instructions to the passengers to fasten their seatbelts. Tr. 40-42; 80, 86. Respondent's actions not only failed to comply with the verbal instructions directly and specifically addressed to him from the flight attendants, buthis actions also failed to comply withthe instructions ofthe captain

- which were communicated to all the passengers viathe illuminated sign. Thus, Respondent's actions during the last parts ofthat flight, inthe circumstances ofthe case, not only constitute violations ofthe cited subsections ofsections 121.317, butthey also constitute interference inviolation ofsection 121.580. 

### 26The most important aspect ofthe evidence regarding Respondent's conduct during the flight in the time preceding the last 45 minutes ofthe flight was that it demonstrates that the instructions provided to him from the crew during the final 45 minutes ofthe flight were not a surprise. The instructions were consistent withthe earlier instructions he hadreceived to stay away from Ms. Tomchik, to remain at the rear ofthe aircraft, and to remain in his seat. This is not a situation where Respondent received special attention and special instructions from the crew for the first time during the last 45 minutes ofthe flight. Instead, this was a situation where Respondent had been givenmany instructions to stay away from Ms. Tomchik and where he had earlier slowly and reluctantly compliedbutrepeatedly resumed attempts to contacther anyway. Respondent's conductpreceding the last 45 minutes ofthe flight is relevant to establishing the escalating nature ofthe situation. What started as attempts by the crew to diffuse the situationby separating Respondent from Ms. Tomchik, led to having to repeatedly monitor Respondent because he made a few attempts to contactMs. Tomchik again, that intum led to a confrontation outside the cockpit door, that in turn led to a standoffwith the crew wherein Respondent made it clear that he would not comply and that finally led to the crew seeking the assistance ofthe armed FBI agent who also tried several times to diffuse the situation and emphasized the need for Respondent to comply withthe instructions from the cabin crew. Infact, Ms. Moormanhadbriefedthe captain about Respondent's conduct, including his conduct before the final45 minutes ofthe flight. Tr. 43. That information was relevant to the captain's assessment ofthe situation andresulted inhimtelling the flight attendant to seek assistance from the FBI agent and resulted in 

### him making a radio call to seekto have law enforcement personnel atthe gate



### 27whenthe aircraft arrived in Las Vegas. Tr. 51. Thus, that information about the escalating nature ofRespondent's poorbehavior- from reluctant and slow compliance, to attempts to quickly approach Ms. Tomchik's area before the crew intervened, to an absolute refusal to comply with the crewmember's instructions during the last 45 minutes ofthe flight- is relevant to the level ofhis culpability for his noncompliant conduct toward the end ofthe flight and was relevant in terms ofhowhis conduct not only interfered with the crew's duties but was also relevant to the level ofhis interference with the pilots' safety duties. B. The evidence at hearing supports allegations in the Complaint that Respondent interfered with crewmember duties and why FBI Agent Mollica's actions in support ofthe cabin crew are relevant and demonstrate another aspect ofhow Respondent interfered with the crewmembers. The Administrator's decision in FAA v. Stout, FAA Order No. 98-12 (June 16, 1998) sets forth specific crewmember duties, including: assuring a safe and orderly enviromnent, attending to other passengers, and retaining control as a crewmember. Id. at *4. The Administrator also found that a captain's decision "whether to make anunscheduled landing or arrange for security to meet the plane" constitutes interference with the captain's normal duties. Id. at *5. In Stout, the ALJ rejected Mr. Stout's argument that he did notthreaten the safety ofthe aircraft because he intended to fasten his seatbelt when he felt it was necessary, finding that it "completely ignored the importance ofmaintaining a safe and orderly enviromnent inthe cabin." Id. The discussion ofcrewmember duties in Stout and how that respondent interfered with those duties supports finding that Respondent interfered with the duties ofthe crewmembers inthe present case, as discussed below.



### 28i. Maintaining a safe and orderly environment in the cabin. Mr. Dumond testified one ofhis safety duties as a flight attendant was to maintain
an orderly cabin environment. Tr. 91. When asked to what extent passengers who stand when the seat belt sign is on interfere withthat duty, he testified that it would be detrimental and prohibit the flight attendants from performing their duties. Tr. 91. The evidence showed that in the final 45 minutes, Respondent arose from his seat when the captain had illuminated the seat belt sign due to turbulence, and that the sign remained illuminateduntil landing. Tr. 40-42, 86. Contrary to flight attendant instructions and contrary to the requirement to comply with the illuminated seatbelt sign, Respondent refusedto sit, even after FBI Agent Mollicahandcuffed him. Tr. 113-15. Respondent's failure to comply with instructions forced Ms. Moorman to act outside of the ordinary duties ofa flight attendant and thus distracted her from her normal duties. Specifically, Ms. Moorman had to move passengers seated in Row 3 to clear that row of seats so that Agent Mollica and Respondent could sit for the remainder ofthe flight, and at a time when the captainhadilluminated the fasten seat-belt sign as the aircraft descended toward Las Vegas, inturbulence no less. Tr. 49. Not only was this outside the ordinary duties for a flight attendant, but also it directly interfered with her normal duty to maintain a safe and orderly cabin environmentby assuring that all passengers remained seated with their seat belts fastened while the seatbelt sign was illuminated. 

### ii. Attending to other passengers During the final45 minutes ofthe flight, Respondent's failure to sit down required Ms. Moorman and Mr. Dumondto direct their full attentionto Respondent while inthe forward "clearzone" ofthe aircraft. Because they are assigned to work a particular



### 29section ofthe aircraft, the necessity ofdirecting their full attention to Respondent distracted them from, and interfered with, their duties both to attendto other passengers seated in their assigned sections ofthe aircraft and generally to observe the cabin, in accordance with their training, for any suspicious activity. Tr. 55-56 

### iii Retaining control as a crewmember Although an argument might be made that the FBI Agent Mollica, in the circumstances ofthis case, became a crewmember, we do not make that argument in this
case. Thus, Respondent is not charged with failing to comply with the instructions ofthe FBI agent orthat his conduct interfered withthe duties ofthe FBI agent. However, the
crew soughtthe assistance ofAgent Mollica when Respondent moved quickly up the aisle, pastMs. Tomchik's seat inrow two, toward the cockpit, and when it became apparent to flight crewmembersthat Respondent was not going to return to his seat and
was not going to comply with the crew's other instructions. Tr. 43, 81. Despite the flight attendants' best efforts, Respondent interfered with the flight attendants' duty to retain control as crewmembers. As a result, the flight attendants found it necessary to call on Agent Mollicato assist them in getting physical/forced control overthe Respondent. Tr. 43, 81. Moreover, when Respondent, inhandcuffs and being led to a row ofseats, bucked and pushed back against Agent Mollica, those actions were contrary to the instructions from the crewthat he proceed to the row ofseats thatMs. Moormanmade available for him and the FBI agent. 

### iv
_ Arranging for security to meet the aircraft FAA Inspector Driscoll testified that phone calls between the flight attendants and the pilots can interfere with the pilot's duties by distracting the pilots from, among other



### 30things, hearing radio calls. Tr. 130. Ms. Moormantestified that she spoke with the captain overthe phone regarding Respondent, and the captaintoldherthat he would call for law enforcementto meetthe aircraft atthe gate. Tr. 51. Law enforcement was in fact waiting inthejetwaywhenthe plane arrived in Las Vegas. Tr. 51. Respondent's conductthatresulted inthe flight crew calling for lawenforcement interfered withtheir normal duties ofmonitoring systems and listening for radio calls. See Stout, FAA Order No. 98-12 at *5.


### v. The totality ofthe circumstances Inthe appropriate case, Complainant could charge a passenger with interfering withthe duties ofa crewmember in a single instance ofdelayed reluctant compliance. In this case, Respondent was onnotice ofthe crew's instructions to him to stay away from Ms. Tomchik. Despitethose instructions earlier inthe flight, he started a pattern of reluctant compliance followed by attempts to stealthily or quickly maneuver into Ms. Tomchik's proximity, thenreluctantly returning to his seat when caught. He was not charged withviolating the rules for those instances ofnoncompliance with crewmember instructions. Butthat evidence is relevant to the charges athandbecause itunequivocally establishes that he was given many opportunities to comply and thathe understood the instructions and was able- albeit reluctantly- to comply. Atthe end ofthe flight, withturbulent air conditions, withthe captain's action to illuminate the seat belt sign, and with flight attendants ordering Respondent to return to the his seat at the rear ofthe aircraft, he ignored those instructions andrefused all attempts bythe crew and the FBI agent, to have himpeacefullyreturnto his seat unrestrained. His noncompliance resulted inthe distraction ofcrewmembers. For



### 31example, the flight attendants had to focus on him instead ofgenerally monitoring everyone, and the pilot was distracted from his normal cockpit duties, including monitoring systems and seeing and avoiding other aircraft, in order to contact law enforcementto meetthe aircraft. Moreover, Respondent's noncompliance resulted in other passengers beingjeopardized. For example, Respondent's pushingback against Agent Mollicawhile the agent escorted the handcuffed Respondent backto arowin the passenger cabinjeopardized his safety as well as the safety ofother passengers inthe
area. One flight attendant observed Respondent's pushing actions

- and that in and of itselfwas anunsafe interference inthat it distracted the flight attendants from normal monitoring duties. Furthermore, Respondent's noncompliancejeopardizedthe flight attendants, who but for his noncompliance, would have beenin their seat with seatbelts/harnesses fastened during the aircraft's flight into turbulence. Respondent's noncompliance also resulted inthe flight attendants having to move Ms. Tomchik and others from the front ofthe aircraft to the rear ofthe aircraft during the aircraft's flight in turbulent air conditions. Moving passengers out oftheir seats to the rear ofthe aircraft during turbulence in order to free a row ofseats atthe front ofthe aircraft for the handcuffed Respondent and the FBI agent interfered withthe crewmembers normal duties ofmaking sure that the passengers remained seated during suchflight conditions.



### 6. Short shrift should be given to Respondent's argument that ifthe FAA does not charge a sick or injured passenger- who might be out ofhis seat during a medical emergency and who might have the focus ofone or more members of the crew -with illegally interferingwith crewmember duties or illegally being out ofthe passenger seat, then, somehow, his conduct should be excused. A person who suffers from a medical event usually does not have any control regarding the onset or course ofthat event. Respondent's actions earlier inthe flight



### 32demonstrated that he was capable, yetreluctant, to comply with the crewmembers' instructions. In the last 45 minutes ofthe flight, he chose to stop complying. Ifhe had wanted to advance a theory that medication or a medical issue precludedhim from complying withthe rules, he should have made those assertions as affirmative defenses and he should have presented competent medical testimony and/or documentation ofhis condition. He did not do either ofthose things. Thus, onthisrecord, he had no medical emergency inasmuch as he had the burden ofproofregarding affirmative defenses (see 14 C.P.R.§ 13.224(a)) and he failed to meet that burden. Hadhe asserted his medical condition in an affirmative defense, the pre-hearing discovery process would have included questions and requests for documents concerning that medical condition or emergency. Had he actually made a timely affirmative defense, FAA attorneys would have been prepared to cross examine his medical witnesses and may well have had medical experts testifY about Respondent's claimed medical emergency and whether his medical conditionmade him incapable ofunderstanding or complying with crewmember instructions. As it was, the evidence establishes thathe was capable of understanding and complying with the instructions before the final45 minutes ofthe flight, albeithe complied slowly and reluctantly. CONCLUSION We believe that the evidence establishes that Respondent violated section 121.580 and we submitthat the civil penalty amount of$3,300-as setby the ALJ whenhe reduced the proposed civil penalty amount of$5,500--- is warranted not only for the section 121.580 violation but also for the section 121.317(f) and 121.317(k) violations under the totality ofthe circumstances.



### 33The evidence demonstrates that the situation onthe aircraft escalated over the
course ofthe flight from an annoyance to interference. The cabin crewwas very patient. The FBI agent was verypatient with Respondent. Respondent puthis wants over the safety interests ofothers inthat aircraft, contrary to three FAA safety regulations. Itis relevant, when assessing sanction to realize thatthe crew's response to Respondent was not heavy-handed. The crew attempted several times to diffuse the situation and the crew had some measure ofsuccess withthe reluctant Respondent. Itis also relevant in assessing sanction that the crew had to talk with Respondent several times regarding his conduct and the need to comply with their instructions. Althoughthe three charges cited relate to Respondent's conduct during the last 45 minutes ofthe flight, the evidence presented about his conduct and the crew's interactions with him during earlier portions ofthe flight is relevant to liability as well as the sanction amount. His conduct during the final45 minutes ofthe flight warrants a civil penalty of$3,300 as setforth bythe ALJ. Respondent's actions and the actions ofthe crewmembers during the time preceding the last 45 minutes ofthe flight are relevantto howegregious the violations were and how culpable the Respondent is for his unsafe conduct. Under FAA Order 2150.3B, "Failure to fasten seat belt while seat belt sign is lighted" ordinarily warrants a civil penalty inthe minimumto moderate range. 10 FAA Order 2150.3B, App'x B-29, Fig. B-3- q (4). For violations committedby an individual not serving inthe capacity ofan airman under 49 U.S.C. § 4630l(a)(5)(A), the sanction guidance specifies a minimumrange of$550-$2,199. Id. atApp'x B-8. The

10 Agency sanction guidance inFAA Order 2150.3B is publicly available at: http://www.faa.gov/regulations _policies/orders_ notices/index.cfin/go/document.informati on/documentid/17213 

### 34moderate range is $2,200-$4,399. Id. The midpoint ofthe moderate to maximum range is $2,475. Under agency sanction guidance, the starting point for a violation ofsection 121.317(£) without considering aggravating and mitigating circumstances is $2,475. FAA Sanction guidance does not specify a sanction range for a violation of section 121.317(k). However, because a violation of 121.317(k) may result from a violation ofsection 121.317(f), the closest analogous provision inthe sanction guidance for a violation ofsection 121.317(k) is "Failure to fasten seat belt while seat belt sign is lighted," as discussed inthe preceding paragraph. Thus, without considering aggravating
ormitigating circumstances, $2,47 5 is an appropriate sanction for a violation of section 121.317(k). Inthis particular case, one could viewthe violations ofsection 121.317(f) and 121.317(k) as lesser included offenses of, or subsumed within, the section 121.580 charge. Although not every interference case will necessarily include a situation where a respondent disobeys the instructions on the fasten seatbelt sign or those verbally given by the crew, in this case the bad conduct that constituted the interference was Respondent's failure to follow the crew's instructions and his refusal to comply withthe illuminated seatbelt sign. Respondent's noncompliance resulted in several examples ofhowhis actions interfered with the crewmembers' normal duties. That interference endangered the crewmembers, other passengers as well as Respondent. We respectfully request thatthe FAA Decisiomnakeruphold the ALJ's findings regarding the three regulatory violations and thatthe FAA Decisiomnaker uphold the $3,300 civil penalty.



### 35DatedNovember 21,2012 Respectfully submitted, Peter J. Lynch Assistant ChiefCounsel Enforcement Division Office ofthe ChiefCounsel By:(J anager, Special Emphasis Enforcement Office ofthe ChiefCounsel 800 Independence Avenue, SW Washington, DC 20591 By: 

# tkff/

36 .Tahn Stuart / Attorney, Enforcement Division 800 Independence Avenue, SW Washington, DC 20591 (202) 267-9958