u.s. DEPARTMENT OF TRANSPORTATION R EC E JVE D 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION 

ADMINISTRATION 

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NOV 2 I 2012 

!HEARING DOCKET 

Complainant, 

v. 

Docket No. CPlOWP0010 

FDMS No. FAA2010-0628 

Hon. Ronnie A. Yoder 

BRIAN W ALLAESA 

Respondent 

COMPLAINANT'S REPLY BRIEF 

Pursuant to section 13.233(e) of the Ru1es of Practice, 14 C.P.R.§ 13.233(e), 

Complainant hereby submits this reply brief. 

STATEMENT OF THE CASE 

On February 25, 2010, the Complainant issued its Notice of Proposed 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. It was alleged that the flight was operated 

under part 121 of the Federal Aviation Regu1ations. The Complainant alleged that a 

passenger briefing prior to the flight advised passengers of the regu1ations requiring 

compliance with crewmember instructions during flight. It was alleged that when the 

seatbelt sign was illuminated, the Respondent was asked several times by the 

crewmembers to take his seat, but that he refused. The Complainant alleged that 

Respondent's conduct interfered with the performance of crewmember duties and the 

1 
Complainant stated that it appeared that Respondent violated 14 CFR section 121.580. 

The Complainant proposed to assess a civil penalty in the amount of $5,500. 

On or about April 5, 2010, Respondent had a telephone conversation with Naomi 

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 in issuing the original Notice of Proposed Civil Penalty, 

allegations about two violations (sections 121.317(f) and 121.317(k)) were inadvertently 

omitted. Ms. Tsuda, on that same day, issued an Amended Notice of Proposed Civil 

Penalty, in which she added the two additional regulatory citations, however, the factual 

allegations and the proposed civil penalty amount remained the unchanged. See 

Attachment A, which is a copy of Ms. Tsuda's April 7, 2010 letter as well as the 

Amended Notice of Proposed Civil Penalty, date April 7, 2010. 

On or about April23, 2010, Respondent participated in an informal conference 

with FAA attorney James Conneely. See the first page, first paragraph of Attachment B 

which is the Final Notice of Proposed Civil Penalty. 

On June 14,2010, the Complainant issued its Final Notice of Proposed Civil 

Penalty in which the Complainant found the facts as originally alleged in the Notice and 

Amended Notice. 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 in this matter. The case was assigned to Chief 

Administrative Law Judge Ronnie A. Yoder. 

2 
Discovery was conducted by the parties. Moreover, Chief ALJ 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 Chief ALJ 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) of Ms. Jaime L. Tomchik, who 

was unavailable to testify on May 22, 2012, but who was the focus of Respondent's 

unwanted attention, comments and touching during the flight on November 6, 2009. At 

the close of the hearing, Chief ALJ instructed the parties to submit post-hearing briefs. 

The parties submitted post-hearing briefs to Judge Yoder in the mid-summer of2012. 

Chief ALJ Yoder issued a written decision in August 2012. In that decision, he 

affirmed the Complainant's factual allegations and he affirmed that Respondent violated 

the three regulations cited in the Complaint. Chief ALJ Yoder, reduced the amount of the 

civil penalty from $5,500 to $3,300. Respondent filed a timely Notice of Appeal and a 

timely Appeal Brief. 

STATEMENT OF THE FACTS 

Jaime L. Tomchik testified, by deposition in this matter, on April30, 2012 in 

Annapolis, Maryland. The deposition was both videotaped and transcribed (Exhibit C-3 

and Exhibit C-2). Mr. Wallaesa, the Respondent, was present for the deposition and 

conducted cross-examination of Ms. 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 

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that was scheduled to be conducted in Washington on May 22, 2012. See Exhibit C-2 at 

pp. 5-7. 

Ms. Tomchik testified that she was a passenger on Southwest Airlines flight 3049 

from BWI airport to Las Vegas, Nevada on November 6, 2009. Exhibit C-2 at p. 7. She 

identified Respondent (who was at the deposition) as someone she saw on that flight. Id. 

at pp. 7-8. She said that before November 6, 2009, she never met Respondent. Id. at 8. 

Ms. Tomchik met Respondent in the line in the 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 of the 

aircraft. Id. at 9. Respondent came on board and sat at the window seat in the same row 

as Ms. Tomchik. Id. Another passenger took the middle seat. Id. 

Before takeoff, Respondent asked the passenger in the middle seat of row 3 if 

they could switch seats. I d. at 10. Respondent moved to the middle seat next to Ms. 

Tomchik who was in the aisle seat. I d. at 10. 

Ms. Tomchik began to read her Harry Potter book. Id. at 11. She testified that 

Respondent asked her what she was reading and that Respondent said, "Oh, you're not 

reading some kind of romance novel?" Id. Later, after Respondent was returning to his 

seat (after using the lavatory), Respondent tapped Ms. Tomchik on the shoulder and 

asked if she would mind if he put his arm around her. I d. She testified that she told him 

that she would mind if he did that and that [his request] was weird and [made her] 

uncomfortable. Id. He responded, "Uncomfortable?". She said, "Yeah, I don't know 

you and had already told you that I had a boyfriend." She testified that he responded, " ... 

I don't care if you have a boyfriend." I d. 

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She testified that she positioned herself in 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 at her. 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 Respondent to stop starring. Id. He responded, "Oh, I 

can't- your hair and eyes are just so beautiful." Id. She told him to stop starring. Id. 

Later, Respondent tapped her on the shoulder again and said, "I'm going to ask 

you a question and it might sound kind of corny." Id. Ms. Tomchik responded, " .. 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 if you 

would do me the honor or the pleasure - I don't know which word it was - of letting me 

hold something beautiful today." Id. 

At that point Ms. Tomchik had had enough. She left her seat to find a middle seat 

somewhere else out of Respondent's sight. I d. at 14. She went one row up- and to the 

co-pilot's side of the airplane- and switched seats with another passenger. Id. As soon 

as she took her new seat, she hit the flight attendant call button. Id. at 15. She informed 

a female flight attendant (Wendy Moorman) 1 about what had happened and the flight 

attendant asked her to make a written statement on a pad of paper provided by the flight 

attendant. Id. See also Respondent's Exhibit R-1 for a copy of Ms. Tomchik's written 

statement. 

1 Ms. Tomchik testified that she knew Flight Attendant Moorman's name because they 

both testified against Respondent in the [criminal] case that was brought against him in 

Las Vegas. Exhibit C-2 at p. 15. There are other documents in the record, and 

discussions in the transcribed pre-trial teleconferences regarding the criminal trial. 

Respondent was acquitted of the criminal charges. 

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Ms. Tomchik saw Ms. Moorman go over to talk to Respondent. Exhibit C-2 at 

p. 16. Ms. Moorman took Ms. Tomchik to the forward galley area and told her that 

Respondent said he was in "awe" of her and just wanted to talk to her again. I d. 

Ms. Tomchik said "no" means "no" and that she wanted him to leave her alone. Id. 

Ms. Tomchik returned to her seat and observed the flight attendant talking to Respondent. 

Id. at 17. Sometime later, Respondent walked up to 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 on her other side started to get up to move Respondent away, when 

the flight attendant came up and told Respondent that he was told to leave Ms. Tomchik 

alone. Id. 

At that point, Ms. Moorman moved Respondent toward the rear of the aircraft. Id. 

at 19. 

Later, Ms. Tomchik saw Respondent moving toward the front of the aircraft" .. 

like a man on a mission ... " I d. at 19. She saw the flight attendants come up to 

Respondent and another gentleman (who she identified as an Air Marshall- but who was 

actually FBI Agent Mollica). Id. She saw a scuffle up front. Id. at 20-22. She then saw 

Ms. Moorman coming toward her and gesturing that she (Tomchik) was to move to the 

rear of the aircraft. Id. at 22. She was told that she was being moved to the rear of the 

aircraft so that they could keep Respondent at the front of the aircraft and "get him under 

control." I d. at 23. 

Ms. Wendy Moorman, who was a flight attendant on the Southwest Airlines flight 

from BWI to Las Vegas on November 6, 2009, testified that after takeoff, she was 

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summoned 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 of the aircraft to discuss the matter. 

Tr. 19. Ms. Moorman said that Ms. Tomchik had told her (and had written) that 

Respondent said inappropriate things and had touched her. Tr. 25. In discussing the 

matter with the three flight attendants at the rear of the aircraft, Respondent told the flight 

attendants that he did not say any inappropriate things. Tr. 29. But he told Ms. Moorman 

that he (Respondent) "loved her [i.e., Tomchik] and that she was the one for him." Id. 

Ms. Moorman testified 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 of his seat and at Ms. 

Tomchik's row of seats 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 could talk to her and Ms. Moorman said that 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 him to go to the rear of the aircraft. Tr. 36. He responded that 

he did not want to go there. Id. Ms. Moorman repeated that she wanted Respondent to 

go to the rear of the aircraft. This time he complied. I d. 

At the rear of the aircraft again, he was told- again- to leave Ms. Tomchik 

alone. Tr. 38. Ms. Moorman said that Respondent appeared agitated and angry. Id. She 

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said he was red-faced and teary-eyed. Id. At that point, the flight attendants decided to 

reseat Respondent from the front of the aircraft to the rear of the aircraft in row 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 of the cabin. Id. She saw 

Respondent get up and quickly come up toward the front of the aircraft. I d. She got out 

of her 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 him to return to his seat and pointed out that the fasten seat-belt 

sign was illuminated. Id. Ms. Moorman testified that Respondent "refused" to return to 

his seat. Id. 

So the flight attendants moved Respondent to the forward galley area. Tr. 43, 

Told him again that he had to return to his seat. Id. He refused. Id. 

Ms. Moorman called the Captain to let him know what was going on. Id. She 

told the Captain that the flight attendants were out of their seats. I d. The Captain 

inquired about the whereabouts of the off-duty FBI agent. Id. When the flight attendants 

told the Captain that they needed help dealing with Respondent, he told them to get the 

FBI agent to come up front and intervene. Id. 

Ms. Moorman gestured toward FBI Agent Mollica to 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. Moorman took action to move Ms. Tomchik to the rear of the 

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aircraft. 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 situation because 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 if he 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 could be handcuffed. Id. The Respondent refused. Id. He was told 

again to tum around and he finally complied and he was handcuffed. Id. 

At that point, the Respondent started yelling toward the passenger cabin that he 

"loved Jaime" and that the flight attendants were keeping him away from her. Tr. 49. 

Ms. Moorman said she observed FBI Agent Mollica trying to bring the 

Respondent back to row 3 (where the flight attendants had cleared out all ofthe other 

passengers) so that the Respondent and the agent would be alone in that row. Tr. 49. 

The Respondent would not sit down, so Agent Mollica had to push him into the seat. Tr. 

50. She testified that the fasten-seat belt sign was illuminated during the entire time that 

the FBI agent was trying to help the flight attendants deal with the Respondent. Tr. 54 

Upon arrival in Las Vegas, the aircraft was met by law enforcement officials. 

Tr. 51. The captain had radioed ahead to make sure law enforcement officers met the 

airplane at the gate. Id. 

Ms. Moorman testified that the Respondent never said that he was on any kind of 

medication and that he never said that he needed any kind of medical assistance. Tr. 52. 

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Ms. Moorman testified that Southwest Airlines had provided her with training in 

conflict resolution. Tr. 56. She testified that while she and the other flight attendants 

were dealing with the Respondent, they could not monitor whether other passengers 

needed assistance. Tr. 58. 

Mr. Robert Dumond, was also a flight attendant on that flight. Tr. 68-70. He 

identified the Respondent in court as the same person who was a passenger on the flight. 

Id. His testimony is substantially the same as Ms. Moorman's testimony in terms of the 

sequence of events that transpired with Respondent. Tr. 70-76. 

However, in addition to the events that Ms. Moorman described, Mr. Dumond 

also testified as follows: He testified that after Respondent had been reseated in row 18, 

he noticed Respondent get out of his seat and Respondent told him (Dumond) that he 

(Respondent) wanted to talk with Ms. Tomchik. Tr. 75-76. Dumond told Respondent, 

"Well, you have got to sit down." Tr. 76. He testified that Respondent wanted to talk to 

flight attendant Wendy Moorman. I d. Dumond informed Moorman of Respondent's 

request, but she was busy doing other things at the time and could not talk to him. I d. 

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. I d. Dumond testified that he told Respondent that he needed to stay seated 

in his 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 of the 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." I d. Dumond testified that 

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Respondent 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. 

Dumond testified that about an hour outside of Las 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 of the 

aircraft. Tr. 79-80. Dumond pursued Respondent. Id. 

Dumond told 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 "talk to her." Dumond grabbed Respondent by the arm. Id. Dumond testified 

that he waived for Agent Mollica to come forward. Tr. 81. Moorman, Dumond and 

Mollica then moved Respondent to the forward galley. Dumond stood in front of the 

cockpit door wile Mollica and Moorman were talking to Respondent. Tr. 83. All three 

(Dumond, Mollica and Moorman) told Respondent that he had to sit down. Tr. 84. 

Respondent indicated that he didn't want to sit down. Tr. 85. 

Dumond testified that he thought Respondent understood what he was being told 

to do, but that Respondent simply did not want to comply. Id. 

Dumond's testimony regarding moving other passengers around so that Agent 

Mollica and Respondent could be put in a row by themselves, is substantially the same as 

Ms. Moorman's testimony. Tr. 85-87. However, he said that Respondent told him that 

he wanted to use the PA system (Public Address System). Dumond, Moorman and 

Mollica said "no." Id. 

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Mr. Dumond testified that as FBI Agent Mollica was first bringing Respondent 

back to a seat, Respondent started yelling that "I am so sorry, I found the one that I love." 

I d. Mollica told Respondent to be quiet. Id. As Mollica got Respondent near row 3, 

Respondent bucked back towards Mollica, which cause Mollica to physically lay 

Respondent down in the row. Tr. 88. 

Mr. Dumond testified about why it was important for passengers to comply with 

the fasten seatbelt sign. Tr. 90-92. 

FBI Agent James Mollica testified that he was on board the flight. Tr. I 04-l 06. 

He testified that he had handcuffs with him and an asp (a six-inch expandable baton) and 

a firearm. Tr. 105. Agent Mollica's testimony in regard to his interactions with the 

Respondent was substantially the same as the testimony of the two flight attendants. 

Tr. I 06-1!0. He explained how he tried to diffuse the situation. Tr. I 08. When those 

efforts did not work, he advised the Respondent that since he (Mollica) was a law 

enforcement officer "you can do this the easy way or the hard way." Tr. I 09-ll 0. The 

easy way would have been for Respondent to sit in a cleared row of seats for the rest of 

the flight with Agent Mollica. The hard way would be Respondent finishing the flight in 

handcuffs. I d. Respondent didn't care and just wanted to talk to "Jaime." Tr. II 0. 

Mollica said that Respondent's eyes were wide open (while being handcufied) 

and that Respondent was in "attack mode" and that he was ready to do something stupid. 

Tr. Ill. Mollica testified that Respondent never said he was on medication 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 

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him and Mollica described the situation as "I was fighting with him." Tr. 114. He 

testified that Respondent is bigger than he is in terms of height and weight. Tr. 116. 

Mollica explained his other concerns while struggling with Respondent. Tr. 116. He 

said that a couple of passengers had jumped up 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 off the plane, I don't want to go 

on." Id. 

William Driscoll, who is an FAA inspector, testified for the Complainant. 

Tr. 123-124. He has over 9000 hours of flight experience, including 12 years as a pilot 

for United Airlines in 737s and A-319 and A-320 aircraft. Tr. 124. Inspector Driscoll 

was in attendance at the deposition of Ms. Tomchik and he provided foundational 

evidence for the admission of the deposition transcript and video. Tr. 127-128. 

Inspector Driscoll testified that as an airline pilot, during the en route portion of a 

flight, the flight crewmembers are supposed to remain diligent and look for other aircraft 

in the area as well as monitoring aircraft systems and communicating with Air Traffic 

Control. Tr. 127-128. In regard to the testimony provided by the flight attendants that 

the Southwest Airlines Captain was contacted by the cabin crew to be advised of the 

situation with the 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 pilot flying 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 

boarding the flight. Id. He testified that he received a free complimentary alcoholic 

13 
drink on board the aircraft. Tr. 135. He testified that when he got up from row 18 to 

move to the front of the aircraft, he was looking to talk to Ms. Moorman. Tr. 136. He 

testified that he did not remember a lot of the details of the flight. I d. 

On cross-examination, Respondent was confronted with his own written statement 

concerning the events ofthe flight. See Exhibit C-4 ant TR.13 9-141. That exhibit 

contains a lot of details about the Respondent's interactions with Ms. Tomchik and others 

during the flight. 

On questions from the judge, Respondent testified that he had been taking 

medication for anxiety and depression. Tr. 145. He testified that before this flight, he 

had been on Paxil for a year and a half. Tr. 145. He said that he was having a panic 

attack. Tr. 146. He said talking to Jaime made him feel comfortable. Tr. 146. He 

admitted that he had no medical evidence that he was having a medical emergency during 

the flight. Tr. 148. 

ISSUES 

1. Whether the absence of any 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 in any of the 

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=ent for a civil 

penalty ... ] as it relates to violating chapter 447 of Title 49, covers this situation? 

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3. Whether the FAA, in amending the notice of proposed civil penalty to add two 

regulatory violations -but not to change any of the 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 of the evidence supports the finding that Respondent 

violated each of the 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 might be out of his seat 

during a medical emergency and who might have the focus of one or more 

members of the 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 of any 

reference to FAA Order 2150.3B in Part 13 and notwithstanding the absence of 

any reference to that Order in any correspondence with Respondent. 

Section 4630l(a)(5)(A) ofTitle 49 of the 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 of Title 49 of the 

United States Code. FAA Order 2150.3B provides FAA personnel with guidance on the 

appropriate level of penalty within, but not outside of, the confines of section 

4630l(a)(5))(A), as applicable to this case. FAA Order 2150.3B allows a "maximum" 

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civil 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 of sections 121.317(£) and (k). This penalty 

was well withln the confines of 49 U.S.C. § 46301(a)(5)(A). Thus, Respondent's 

apparent belief that 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 is just that: i.e., 

sanction guidance on how agency personnel should weigh the facts and circumstances of 

certain conduct in view of certain regulatory violations. The proposed penalty of $5,500 

was both within the range authorized by statute and withln the range provided in the 

sanction guidance found in FAA 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 of Title 49, applies to this case. 

Complainant understands Respondent to argue that 49 U.S.C. § 4630l(a)(5)(A) 

authorizes the FAA to assess a civil penalty against individuals or entities regulated by 

the FAA, but that Respondent, as a passenger and a non-certificate holder, falls outside 

the scope section 4630l(a)(5)(A) and consequently, he falls outside the scope of the 

FAA's civil penalty authority. Respondent's argument is without merit. Passengers on 

board aircraft are regulated by the FAA because their conduct can jeopardize the safety of 

the flight and thus everyone on board. 

16 
Congress, in Title VI, section 60l(a)(6) of the Federal Aviation Act of 1958, gave 

the FAA the following authority: 

The Administrator is empowered and it shall be his duty to promote safety of 

flight of civil aircraft in air commerce by prescribing and revising from time to 

time: ... ( 6) Such reasonable 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 of the Federal 

Aviation Act of 1958, quoted above, promulgated what is now 14 C.P.R.§ 121.580 as Special 

Civil Air Regulation No. 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) of the Federal 

Aviation Act of 1958, granted the FAA the authority to assess a civil penalty against "[ a]ny person 

who (A) violates any provision of title III, IV, V, VI, VII, or XII ... or any rule regulation, or 

order issued thereunder." Federal Aviation Act§ 90l(a)(l). The regulatory history shows that the 

FAA promulgated SR-448, the precursor to 14 C.P.R. § 121.580, under the authority that Congress 

granted to the FAA in Title VI of section 601 of the Federal Aviation Act of 1958 to prescribe 

"reasonable rules and regulations" to promote safety of flight. 3 Furthermore, in section 901, 

Congress explicitly authorized the FAA to assess a civil penalty against a person who violates a 

2 In the preamble, the FAA stated that "[t]he recent hijackings of air carrier aircraft have 

highlighted a necessity to provide additional controls over the conduct of passengers in 

order to avoid a serious threat to the safety of flights and persons aboard them ... The 

regulation being adopted will also make it a violation of the CARs for any person to 

assault, threaten, intimidate, or interfere with a crewmember in the performance of his or 

her duties aboard an air carrier aircraft." 26 FR 7009 (Aug. 4, 1961). 

3 For an explanation of how the language ofSR-448 was adopted in 14 C.P.R.§ 121.580, 

see64FR 1076-78 (Jan. 7, 1999). 

17 
regulation issued under Title VI of Section 601. Federal Aviation Act of 1958 § 90l(a)(l). 

Section 601(a)(6) of the 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 of Appeals for the Fifth Circuit recognized the FAA's authority to 

promulgate the anti-interference regulation under the authority granted to it by 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 of the crewmember's duties 

aboard an aircraft being operated." 14 C.P.R.§ 91.8(a) (1984).5 This regulation 

was promulgated pursuant to subchapter VI of the Federal Aviation Act, which 

empowers the Administrator of the Federal Aviation Administration to prescribe 

"[ s ]uch reasonable 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 on to state that: 

The Administrator has also promulgated specific enforcement regulations for the 

collection of civil penalties imposed pursuant to 49 U.S.C. § 1471(a)(1): 

(a) Under section 901 of the Federal Aviation Act of 1958 (49 U.S.C. 1471), a 

person who violates any provision of Title III, V, VI, or XII of that Act, or any 

regulation or order issued under one of those titles, is subject to a civil penalty 

of not more than $1,000 for each violation. 

Kilpatrick, 759 F.2d at 1252. 

4 Section 44701(a)(5) states: "(a) PROMOTING SAFETY.- The Administrator of the 

Federal Aviation Administration shall promote safe flight of civil 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) of the Federal Aviation Regulations has been renumbered. The 

regulatory language found in former Section 91.8( a) can now be found in section 91.11. 

The prohibition on interfering 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. 

18 
Clause (ii) of 49 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) of that section specifically lists chapter 447 of Title 49 of the U.S. 

Code. Section 4470l(a) is part of chapter 447 of Title 49 U.S.C. 6 

In sum, the FAA determined that Respondent violated 14 C.P.R. section 121.580, a 

Federal Aviation Regulation validly promulgated under the authority oflong-standing 

statutory language that has been renumbered and is presently codified at 49 U.S.C. 

Section 4470l(a)(5). Having found that Respondent violated section 121.580, the FAA 

assessed a civil penalty against Respondent under the authority of 49 U.S.C. 

4630l(a)(5)(A). 7 

3. The FAA, in amending the notice of proposed civil penalty to add two 

regulatory violations - but not to change any of the factual allegations or 

sanction amount sought - did not "intimidate" Respondent with a higher civil 

penalty. 

6 Prior to 1994, many aviation laws, like the Federal Aviation Act of 1958, were not 

formally part of Title 49 of the 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, which resulted in new section numbers and the rearrangement of some 

statutory provisions, Congress did" ... not intend[] to have any substantive effect on the 

law. See Attachment Cat *asterisk. Thus, a rule promulgated under section 601 of the 

Federal Aviation Act of 1958 (current section 4470l(a) of Title 49) was promulgated 

under statutory language that was merely reorganized and renumbered into the current 49 

U.S.C. section 4470l(a). The court in Kilpatrick clearly recognized this idea by 

discussing the relevant sections of the Federal Aviation Act of 1958 and the then parallel 

sections of 49 U.S.C., i.e., 1421 and 1471. In 1985, when Kilpatrick was 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 14 71. In 1994, as part of the codification project, those sections (1421 and 

1471 of the 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). 

19 
Respondent argues that the FAA intimidated him by "adding charges and 

increasing the civil penalty fine." Respondent Brief at 8-9. Respondent's argument is 

without merit. 

Complainant's original notice of proposed civil penalty alleged a violation of 

section 121.580 and proposed a civil penalty of $5,500. Before the FAA held the 

informal conference, Ms. Tsuda, realized that the original notice did not contain 

allegations that Respondent's conduct also violated Sections 121.317(f) and (k). 

Therefore, on April 7, 2010, Ms. Tsuda issued an Amended Notice to add allegations that 

Respondent's conduct violated Sections 121.317(f) and (k), but she did not change any of 

the factual allegations and she did not increase the amount of the proposed $5,5 00 civil 

penalty. It just so happens that the 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) that the FAA was 

increasing the proposed civil penalty at all. 

In Complainant's view, the $5,500 proposed civil penalty was, if anything, 

relatively light in view of the repeated warnings and instructions that Respondent was 

given. Most importantly, the original proposed civil penalty amount was relatively light 

and the ALJ' s reduction of the civil penalty amount was a gift to Respondent, especially 

in view of the danger he presented to everyone on that aircraft by interfering with both 

the cabin and flight crews in terms of conducting their normal duties. In fact, 

Respondent's irresponsible and self-centered actions distracted the cabin crewmembers 

from their normal duty of making sure everyone remain seated during the air turbulence 

and while the fasten seatbelt signs were illuminated. His conduct not only distracted the 

20 
flight attendants from generally monitoring conditions and other passengers in the cabin 

but it forced them to reseat some passengers to clear a row of seats 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 

had to be brought to the attention of the flight crew, which resulted in them being 

distracted from their normal duties of flying the airplane, monitoring and making radio 

communications with Air 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. An alcoholic drink 

does not excuse Respondent's conduct. He claims that he had a medical emergency, yet 

the other on-board-witnesses each testified that he never made a claim that he was on 

medication or had a medical emergency. He claims he had medication and a medical 

condition, but he never provided any documentation to substantiate his assertions. 

This Respondent acted in a manner that ignored the rights and safety of others. If 

he wanted to talk or touch Ms. Tomchik, he was going to do just exactly that even if that 

meant repeatedly defying the instructions of the cabin crew and ignoring the fasten seat 

belt sign. If he wanted to get out of his seat and talk to someone (whether it was 

Ms. Tomchik or Flight Attendant Moorman), he was going to do that. After being told 

by the crew to return to a passenger seat and after being handcuffed by the FBI agent, he 

continued to defy the instructions of the crew inasmuch as he pushed back on the agent 

while he was being escorted down the aisle to the row of seats that had been cleared. 

21 
Respondent was treated fairly throughout this matter, from those who interacted 

with him on November 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 tried to intimidate him by filing a Motion 

For Protective Order (to keep Ms. Tomchik's address and other contact information 

confidential). At the end of Respondent's fourth argument, he states that the 

Complainant was using intimidation tactics 

" ... by issuing the Motion for Protective Order against the Respondent when it 

has been proven through the testimony of Ms. Tomchik, the Respondent sought 

no further interactions with Ms. Tomchik after she actually voiced her desire to no 

longer speak to the Respondent." 

In view of Respondent's statements on November 6, 2009 (everything from 

stating that he was in love with Ms. Tomchik, a woman he had just met in the line to get 

on board the aircraft, to his statements about his need to talk to Ms. Tomchik, to yelling 

his love of Ms. Tomchik to those in the aircraft cabin, to his request that the FBI agent 

just shoot him after he was handcuffed and forcefully placed into the empty row of seats) 

and his actions on November 6, 2009 (everything from his inappropriate and aggressive 

words and actions toward Ms. Tomchik, to repeatedly moving out of his seat to go 

toward Ms. Tomchik's seat, to refusing to return to his seat, to being combative with the 

FBI agent who had placed handcuffs on him), the FAA had compelling reasons to ask the 

ALJ to issue an order that would have kept Ms. Tomchik's address and other personal 

information confidential. 

22 
For 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 with the evidence in this case. Ms. Tomchik got out of her original seat 

and moved to another seat when she could no longer tolerate Respondent's conduct. He 

was told by the flight attendants that she did not want to talk to him and most importantly 

he was told by the flight attendant's to stay away from her. It seems, that Respondent's 

own statement, quoted above, is quite revealing in that it appears that then and now he 

did not and does not believe that he had to comply with the instructions of the flight 

attendants until and unless he heard Ms. Tomchik say that she did not want to speak to 

him anymore. 

It was 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 via the 

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 by the crew and the 

FBI agent to get him back to a cleared-out row of seats safely and without a struggle. 

Respondent's lack of respect for the law and for others were sufficient, legitimate 

bases for the Complainant to seek a protective order. Respondent's conduct indicated 

that he was not impressed with or influenced by several people, including an FBI agent 

who had just handcuffed him. Nothing in this record indicates that Respondent was 

intimidated or influenced or impressed with anything or anyone. The Complainant had 

bona fide bases to file a Motion for Protective Order in this case. 

23 
5. A preponderance of the evidence supports the finding that Respondent violated 

each of the 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 an interference with 

crewmember duties. In this regard, Complainant disagreed with the ALJ's assertion that 

' [a ]ll this stuff about interaction with Mr. Mollica, and communications with 

Ms. Tomchik are not directly relevant to that allegation." Tr. 156 

A. Respondent's conduct preceding the final45 minutes of the 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 with the three violations for his conduct 

preceding the final45 minutes of the flight. 8 However, that conduct is relevant to 

establishing the motive for his noncompliance during the final 45 minutes, the escalating 

nature of his conduct and that he both understood and was capable of complying with 

crewmember instructions but chose to disregard the crew's instructions in the later parts 

of the flight. 

Ms. Tomchik's deposition and Respondent's written submission, "Testimony of 

Respondent" make clear that Ms. Tomchik was the recipient of Respondent's unwanted 

verbal and physical attention. Exhibit C-2, pp. 11-16; see Exhibit C-4. After 

Ms. Tomchik initially reported to Flight Attendant Moorman her attempt to escape 

Respondent's advances, Respondent complied with Ms. Moorman's instructions to go to 

8 Testimony at the hearing established that approximately 45 minutes before the aircraft 

landed, the flightcrew illuminated the fasten-seatbelt sign because the aircraft was 

heading into turbulent air. In this brief, we will use this 45-minute period as the time 

frame within which Respondent violated the regulation cited in the Complaint. 

24 
the back of the plane to speak with the flight attendants. Tr. 28. After Respondent 

returned to his seat in the third row, he again attempted to speak with Ms. Tomchik. 

Tr. 33-34. Ms. Moorman interceded, and again asked him to return to the back of the 

aircraft. Respondent at first refused, then complied reluctantly. Tr. 36-37. After the 

flight attendants reseated Respondent in row 18, he attempted on several occasions to 

walk to the front of the aircraft. Tr. 41-42; 77-78. Each time Flight Attendant Dumond 

told him to sit down prior to the final 45 minutes of the flight, Respondent complied 

reluctantly. Tr. 77-78. While this testimony clearly establishes that Respondent was 

resistant and slow to respond to instructions to remain away from Ms. Tomchik or to 

remain in his seat with his seat belt fastened prior to the final45 minutes of the flight, this 

was not a situation where Respondent did not understand or was incapable of controlling 

himself. Tr. 85, lines 10-13; 142-43. The evidence regarding the events preceding the 

last 45 minutes of the flight establishes that Respondent understood and was capable of 

complying with flight attendant instructions to remain seated and to refrain from 

contacting Ms. Tomchik. 

Thus, for example, Respondent cannot credibly claim that some type of medical 

condition, for which he provided no documentation in the record, prevented him from 

comprehending instructions when the evidence demonstrates that: (I) he understood 

when he was initially told to come to the rear of the aircraft to discuss the matter; (2) he 

understood when the crew required him to be reseated near the back of the aircraft as a 

consequence of his attempt to contact Ms. Tomchik, against crewmember instructions, 

where she had reseated herself, and (3) he understood when Mr. Dumond told him to 

25 
return to his seat in Row 18 after he walked past his seat toward the front of the aircraft 

after exiting the aft lavatory. 

The evidence of Respondent's conduct prior to the fmal45 minutes of the flight 

firmly establishes his motives and intentions toward the end of the flight. Specifically, 

when Respondent arose from his seat in the back of the plane and walked "with purpose" 

to the front of the plane in the final45 minutes of the flight, this was not a situation where 

the Respondent was acting aimlessly or where he lacked lucidity or purpose. Tr. 79-80. 

He had the goal in mind to communicate with Ms. Tomchik again. Tr. 80-81, 87, 109-

110, 142. His goal happened to be at odds with Ms. Tomchik's preferences and most 

importantly, his goal was at odds with the cabin crew's goal of preventing conflicts 

among the passengers that had the potential of erupting into physical altercations. 

Tr. 117, 121; Exhibit C-2, page 18, lines 22-25. Respondent decided that his goals were 

more important than adhering to the instructions he received from the crew. See Tr. 147-

148. That evidence establishes that his goals were at odds with the crew's safety goals. 

And, that evidence establishes that in the 45 minutes of the 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 established that the flight deck crew caused the fasten seatbelt 

sign to be illuminated, we submit that the flight crew was 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, but his actions also failed to comply with the instructions 

ofthe captain - which were communicated to all the passengers via the illuminated sign. 

Thus, Respondent's actions during the last parts of that flight, in the circumstances of the 

case, not only constitute violations of the cited subsections of sections 121.317, but they 

also constitute interference in violation of section 121.580. 

26 
The most important aspect of the evidence regarding Respondent's conduct during 

the flight in the time preceding the last 45 minutes of the flight was that it demonstrates 

that the instructions provided to him from the crew during the final 45 minutes of the 

flight were not a surprise. The instructions were consistent with the earlier instructions 

he had received to stay away from Ms. Tomchik, to remain at the rear of the 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 of the 

flight. Instead, this was a situation where Respondent had been given many instructions 

to stay away from Ms. Tomchik and where he had earlier slowly and reluctantly 

complied but repeatedly resumed attempts to contact her anyway. 

Respondent's conduct preceding the last 45 minutes ofthe flight is relevant to 

establishing the escalating nature of the situation. What started as attempts by the crew to 

diffuse the situation by separating Respondent from Ms. Tomchik, led to having to 

repeatedly monitor Respondent because he made a few attempts to contact Ms. Tomchik 

again, that in tum led to a confrontation outside the cockpit door, that in turn led to a 

standoff with the crew wherein Respondent made it clear that he would not comply and 

that finally led to the crew seeking the assistance of the armed FBI agent who also tried 

several times to diffuse the situation and emphasized the need for Respondent to comply 

with the instructions from the cabin crew. In fact, Ms. Moorman had briefed the captain 

about Respondent's conduct, including his conduct before the final45 minutes of the 

flight. Tr. 43. That information was relevant to the captain's assessment of the situation 

and resulted in him telling the flight attendant to seek assistance from the FBI agent and 

resulted in him making a radio call to seek to have law enforcement personnel at the gate 

27 
when the aircraft arrived in Las Vegas. Tr. 51. Thus, that information about the 

escalating nature of Respondent's poor behavior- 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 

of the flight- is relevant to the level of his culpability for his noncompliant conduct 

toward the end of the flight and was relevant in terms of how his conduct not only 

interfered with the crew's duties but was also relevant to the level of his 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 of how 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 an unscheduled 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 not threaten the safety of the aircraft because he 

intended to fasten his seatbelt when he felt it was necessary, finding that it "completely 

ignored the importance of maintaining a safe and orderly enviromnent in the cabin." I d. 

The discussion of crewmember duties in Stout and how that respondent interfered with 

those duties supports finding that Respondent interfered with the duties of the 

crewmembers in the present case, as discussed below. 

28 
i. Maintaining a safe and orderly environment in the cabin. 

Mr. Dumond testified one of his 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 with that 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 illuminated until landing. Tr. 40-42, 86. Contrary to flight attendant 

instructions and contrary to the requirement to comply with the illuminated seatbelt sign, 

Respondent refused to sit, even after FBI Agent Mollica handcuffed him. Tr. 113-15. 

Respondent's failure to comply with instructions forced Ms. Moorman to act outside of 

the ordinary duties of a 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 of the flight, and 

at a time when the captain had illuminated the fasten seat-belt sign as the aircraft 

descended toward Las Vegas, in turbulence 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 environment by 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 of the flight, Respondent's failure to sit down 

required Ms. Moorman and Mr. Dumond to direct their full attention to Respondent while 

in the forward "clear zone" ofthe aircraft. Because they are assigned to work a particular 

29 
section of the aircraft, the necessity of directing their full attention to Respondent 

distracted them from, and interfered with, their duties both to attend to other passengers 

seated in their assigned sections of the 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 of this 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 of the 

FBI agent or that his conduct interfered with the duties of the FBI agent. However, the 

crew sought the assistance of Agent Mollica when Respondent moved quickly up the 

aisle, past Ms. Tomchik's seat in row two, toward the cockpit, and when it became 

apparent to flight crewmembers that 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 Mollica to assist them in getting physical/forced control over the Respondent. 

Tr. 43, 81. Moreover, when Respondent, in handcuffs and being led to a row of seats, 

bucked and pushed back against Agent Mollica, those actions were contrary to the 

instructions from the crew that he proceed to the row of seats that Ms. Moorman made 

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 

30 
things, hearing radio calls. Tr. 130. Ms. Moorman testified that she spoke with the 

captain over the phone regarding Respondent, and the captain told her that he would call 

for law enforcement to meet the aircraft at the gate. Tr. 51. Law enforcement was in 

fact waiting in the jetway when the plane arrived in Las Vegas. Tr. 51. Respondent's 

conduct that resulted in the flight crew calling for law enforcement interfered with their 

normal duties of monitoring systems and listening for radio calls. See Stout, FAA Order 

No. 98-12 at *5. 

v. The totality of the circumstances 

In the appropriate case, Complainant could charge a passenger with interfering 

with the duties of a crewmember in a single instance of delayed reluctant compliance. In 

this case, Respondent was on notice of the crew's instructions to him to stay away from 

Ms. Tomchik. Despite those instructions earlier in the flight, he started a pattern of 

reluctant compliance followed by attempts to stealthily or quickly maneuver into 

Ms. Tomchik's proximity, then reluctantly returning to his seat when caught. He was not 

charged with violating the rules for those instances of noncompliance with crewmember 

instructions. But that evidence is relevant to the charges at hand because it unequivocally 

establishes that he was given many opportunities to comply and that he understood the 

instructions and was able- albeit reluctantly- to comply. 

At the end of the flight, with turbulent air conditions, with the captain's action to 

illuminate the seat belt sign, and with flight attendants ordering Respondent to return to 

the his seat at the rear of the aircraft, he ignored those instructions and refused all 

attempts by the crew and the FBI agent, to have him peacefully return to his seat 

unrestrained. His noncompliance resulted in the distraction of crewmembers. For 

31 
example, the flight attendants had to focus on him instead of generally 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 

enforcement to meet the aircraft. Moreover, Respondent's noncompliance resulted in 

other passengers being jeopardized. For example, Respondent's pushing back against 

Agent Mollica while the agent escorted the handcuffed Respondent back to a row in the 

passenger cabin jeopardized his safety as well as the safety of other passengers in the 

area. One flight attendant observed Respondent's pushing actions - and that in and of 

itself was an unsafe interference in that it distracted the flight attendants from normal 

monitoring duties. Furthermore, Respondent's noncompliance jeopardized the flight 

attendants, who but for his noncompliance, would have been in their seat with 

seatbelts/harnesses fastened during the aircraft's flight into turbulence. Respondent's 

noncompliance also resulted in the flight attendants having to move Ms. Tomchik and 

others from the front of the aircraft to the rear of the aircraft during the aircraft's flight in 

turbulent air conditions. Moving passengers out of their seats to the rear of the aircraft 

during turbulence in order to free a row of seats at the front of the aircraft for the 

handcuffed Respondent and the FBI agent interfered with the crewmembers normal 

duties of making sure that the passengers remained seated during such flight conditions. 

6. Short shrift should be given to Respondent's argument that if the FAA does not 

charge a sick or injured passenger- who might be out of his seat during a 

medical emergency and who might have the focus of one or more members of 

the crew -with illegally interfering with crewmember duties or illegally being 

out of the 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 of that event. Respondent's actions earlier in the flight 

32 
demonstrated that he was capable, yet reluctant, to comply with the crewmembers' 

instructions. In the last 45 minutes of the flight, he chose to stop complying. If he had 

wanted to advance a theory that medication or a medical issue precluded him from 

complying with the rules, he should have made those assertions as affirmative defenses 

and he should have presented competent medical testimony and/or documentation of his 

condition. He did not do either of those things. Thus, on this record, he had no medical 

emergency inasmuch as he had the burden of proof regarding affirmative defenses (see 

14 C.P.R.§ 13.224(a)) and he failed to meet that burden. Had he 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 condition made him incapable of understanding or complying with 

crewmember instructions. As it was, the evidence establishes that he was capable of 

understanding and complying with the instructions before the final45 minutes of the 

flight, albeit he complied slowly and reluctantly. 

CONCLUSION 

We believe that the evidence establishes that Respondent violated section 121.580 

and we submit that the civil penalty amount of$3,300-as set by the ALJ when he 

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 of the circumstances. 

33 
The evidence demonstrates that the situation on the aircraft escalated over the 

course of the flight from an annoyance to interference. The cabin crew was very patient. 

The FBI agent was very patient with Respondent. Respondent put his wants over the 

safety interests of others in that aircraft, contrary to three FAA safety regulations. It is 

relevant, when assessing sanction to realize that the crew's response to Respondent was 

not heavy-handed. The crew attempted several times to diffuse the situation and the crew 

had some measure of success with the reluctant Respondent. It is 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. Although the three charges cited 

relate to Respondent's conduct during the last 45 minutes of the flight, the evidence 

presented about his conduct and the crew's interactions with him during earlier portions 

of the flight is relevant to liability as well as the sanction amount. His conduct during the 

final45 minutes of the flight warrants a civil penalty of$3,300 as set forth by the ALJ. 

Respondent's actions and the actions of the crewmembers during the time preceding the 

last 45 minutes of the flight are relevant to how egregious 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 in the minimum to moderate range.

10 

FAA Order 2150.3B, App'x B-29, Fig. B-3- q (4). For violations committed by an 

individual not serving in the capacity of an airman under 49 U.S.C. § 4630l(a)(5)(A), the 

sanction guidance specifies a minimum range of$550-$2,199. Id. at App'x B-8. The 

10 Agency sanction guidance in FAA Order 2150.3B is publicly available at: 

http ://www.faa. gov/regulations _policies/ orders_ notices/index.cfin/ go/ document.informati 

on/documentid/17213 

34 
moderate range is $2,200-$4,399. Id. The midpoint of the moderate to maximum range 

is $2,475. Under agency sanction guidance, the starting point for a violation of section 

121.317(£) without considering aggravating and mitigating circumstances is $2,4 7 5. 

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 of section 121.317(f), the closest analogous provision in the sanction guidance 

for a violation of section 121.317(k) is "Failure to fasten seat belt while seat belt sign is 

lighted," as discussed in the preceding paragraph. Thus, without considering aggravating 

or mitigating circumstances, $2,4 7 5 is an appropriate sanction for a violation of 

section 121.317(k). 

In this particular case, one could view the violations of section 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 with the illuminated 

seatbelt sign. Respondent's noncompliance resulted in several examples of how his 

actions interfered with the crewmembers' normal duties. That interference endangered 

the crewmembers, other passengers as well as Respondent. 

We respectfully request that the FAA Decisiomnaker uphold the ALJ's findings 

regarding the three regulatory violations and that the FAA Decisiomnaker uphold the 

$3,300 civil penalty. 

35 
Dated November 21,2012 

Respectfully submitted, 

Peter J. Lynch 

Assistant Chief Counsel 

Enforcement Division 

Office of the Chief Counsel 

By:(J 

anager, Special Emphasis Enforcement 

Office of the Chief Counsel 

800 Independence Avenue, SW 

Washington, DC 20591 

By: tkff/ 

36 

.T ahn Stuart / 

Attorney, Enforcement Division 

800 Independence A venue, SW 

Washington, DC 20591 

(202) 267-9958