RECEIVED 

DEC 12 2013 

HEARING DOCKET 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

- - - - - - X 

In the Matter of 

SCOTT TICE, Docket No.: FAA-2013-0042 

Respondent. 

- - - - - - - - - - - - - - - X 

U.S. Department of Transportation 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

(Ell-310) 

Washington, D.C. 20590 

Thursday, November 14, 2013 

MOTION PREHEARING CONFERENCE (TELEPHONIC) 

The above-entitled matter came on for hearing at 

1:33 p.m., pursuant to notice. 

BEFORE: HON. J.E. SULLIVAN, U.S. Administrative Law Judge 

Diversified Reporting Services, Inc. 

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APPEARANCES: 

For the Respondents: 

SCOTT TICE, pro se (By telephone) 

21125 Timberland Road 

Barronett, Wisconsin 54813-9540 

For the Agency: 

R. BENNETT SARGENT, ESQ. (By telephone) 

Julie DeCosta, Agent (By telephone) 

Office of the Regional Counsel (ANE-7) 

New England Region 

Federal Aviation Administration 

12 New England Executive Park 

Burlington, Massachusetts 01821 

(781) 238-7058 

Observer: 

CODY L. SMITH, Attorney-advisor 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, D.C. 20590 

Diversified Reporting Services, Inc. 

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3 

P R 0 C E E D I N G S 1 

2 JUDGE SULLIVAN: We're on the record in the matter 

3 of Scott Tice. This is Docket Number FAA-2013-0042. Today 

4 is Thursday, November 14, 2013, and the parties have convened 

5 by telephone for a motion conference. 

6 Present today by telephone is the FAA attorney of 

7 record, Mr. R. Bennett Sargent. Also present, appearing as 

8 an observer with him, is Agent Julie DeCosta from the FAA. 

9 Present on behalf of the respondent, Scott Tice, is Mr. Scott 

10 Tice, who's appearing prose. Also present at the Office of 

11 Hearings, sitting in as an observer only, is Mr. Cody L. 

12 Smith, an attorney advisor with this office. 

13 Good afternoon, everyone. I'll just mention that 

14 the most recent history of this case is set on October 1, 

15 2013. There was an order canceling telephone conference. We 

16 had originally scheduled this conference for October 10, 

17 2013. As you all now, we all had a government shut-down 

18 between October 1, 2013, and October 17, 2013, and, as a 

19 result this office was not functioning during that budget 

20 crisis. 

21 The office reopened then on October 17, 2013, and 

22 an order was issued on October 23rd, 2013, setting a deadline 

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1 for the FAA to answer the respondent's motion to correct the 

2 transcript and rescheduling the telephone motion conference 

3 to today's date and time. So why don't we take up the 

4 inferred motion to correct the transcript that was contained 

5 in Mr. Tice's response that was filed with this office on 

6 September 24, 2013. 

7 Mr. Sargent, do you have any objection to the 

8 proposed correction? 

9 MR. SARGENT: No. No objection. 

10 JUDGE SULLIVAN: There being no objection, then I 

11 will simply note that the respondent's inferred motion for 

12 correction is granted, and the June 13, 2013 transcript shall 

13 be corrected and is corrected so that page 31, line 7, which 

14 currently reads ~circlingn -- and I'll spell that, c-i-r-c-1-

15 i-n-g -- is corrected to read cynical, c-y-n-i-c-a-1. 

16 Then let's talk a little bit about the motion 

17 that's before us today. I'll simply note that on August 20, 

18 2013, the FAA filed complainant's motion for decision on 

19 issue of civil penalty. And on September 24, 2013, the 

20 respondent, Scott Tice, filed a two-page letter of reply in 

21 response to that motion, and we're here today to talk about 

22 that. So before we get into the meat of the issues, I do 

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1 need to talk just briefly about some procedural matters. 

2 Mr. Sargent, as I understand these motions, 

3 essentially, you're moving for a summary judgment motion. Is 

4 that correct, or is your motion intended to be something 

5 other than dispositive in this case? 

6 MR. SARGENT: No, you're absolutely correct, Your 

7 Honor. 

s JUDGE SULLIVAN: Okay. You have provided in your 

9 motion that this office received on August 20, 2013, a 

10 variety of arguments, but I did not see any kind of 

11 testimonial data, testimonial submissions of any kind, nor 

12 any reference, to any testimonial submission to support your 

13 argument. In summary judgment motions, there certainly is an 

14 opportunity for a litigating party to explain how this 

15 particular argument could translate into testimonial evidence 

16 should the case go to hearing. 

17 You had identified at the top of this conference an 

18 observer by the name Julie DeCosta. Is she by any chance the 

19 FAA agent that originally calculated the proposed $600 civil 

20 penalty, or is that a witness that is not yet known to the 

21 court? 

22 MR. SARGENT: Well, Your Honor, the calculation 

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1 additional penalty isn't done by any one, particular 

2 individual. And as is spelled out by our sanction guidance 

3 policy, it's a matter of joint decisionmaking between our 

4 office of hazardous material safety and our legal office. 

6 

5 JUDGE SULLIVAN: Well, let me put this a different 

6 way. Let's assume that you had not filed this motion and we 

7 decided that we were going to have the hearing in Salt Lake 

8 City, Utah, and we all flew to Salt Lake City, Utah, to 

9 convene at a Federal District Court House to hold the hearing 

10 on the issue of the contested civil penalty. Who would be 

11 the witness you'd call to provide evidence to the court and 

12 to the opposing party about how you calculated the penalty? 

13 MR. SARGENT: Okay. I think I understand better 

14 what you mean. Yeah. So, essentially, that witness would, 

15 in fact, or at least one of those witnesses would likely be 

16 agent DeCosta? 

17 JUDGE SULLIVAN: Okay. So when I look at this type 

18 of motion, one of the things I'm looking for is whether or 

19 not you are making an argument to me that is in essence 

20 supported by testimonial evidence. Typically, when someone 

21 files a motion for a dispositive decision, they will identify 

22 what evidence supports the argument. And so I'm asking you 

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1 if, in fact, we actually went to trial, if there's someone 

2 that you could call to testify to the matters that you argue, 

3 that you present in argument to me today. And, if so, is 

4 that Ms. DeCosta? 

5 MR. SARGENT: Yes, that individual would, I 

6 suppose, be Ms. DeCosta, given that she investigated the 

7 underlying violation and gathered the facts. 

8 JUDGE SULLIVAN: Okay. 

9 MR. SARGENT: Now you want 

10 JUDGE SULLIVAN: Yes, go ahead. 

11 MR. SARGENT: Your Honor, so as I understood it, 

12 the issue, though, being that none of the underlying facts 

13 which led to the discovery of the violations and/or the 

14 violations themselves are in dispute in this matter, the only 

15 issue that we're currently litigating over today is whether 

16 the penalty selected by the agency in this case is 

17 appropriate. 

18 JUDGE SULLIVAN: Which involves -- which involved 

19 discretionary decisionmaking by the FAA and its agents? 

20 MR. SARGENT: Correct. And in that discretion we 

21 utilize the facts that are no longer -- that haven't been 

22 disputed in order to apply our factor analysis in determining 

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1 how to select the appropriate penalty in this matter. 

2 JUDGE SULLIVAN: I understand that. But, 

3 currently, currently, we are scheduled potentially to have a 

4 hearing in this case. You are moving for summary judgment, 

s which is a dispositive motion on the issue of civil penalty. 

6 Summary judgment requires that you provide documentation or 

7 some type of testimonial statement that supports whatever 

8 argument you're making for the disposition you seek. 

9 In the absence of any testimonial evidence or 

10 documentation, you as a moving party have to at least make an 

11 offer of proof that you're argument can be supported by 

12 testimonial or admissible evidence of some kind. So I don't 

13 dispute that you have laid out a very clear and articulate 

14 discussion of how some person that you represent has reached 

15 the proposed amount that you are suggesting to the court to 

16 consider. But I simply need to know from you, as an officer 

17 of the court, who that person or persons is. And I'm hearing 

18 from you as an officer of the court that you are asserting 

19 that the arguments that you make regarding how your client 

20 took information and utilized the sanction guidelines is 

21 something that was done by a person who exercised their 

22 discretion and judgment in reaching this proposal, and that 

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1 Lhis person, if called upon, could come and testify to that. 

2 And I'm hearing from you that that's in fact true, and that 

I 

3 that person is Julie DeCosta. 

4 MR. SARGENT: Yes, Your Honor, along with, I 

5 suppose, there could be documentary evidence to also evidence 

6 Ms. DeCosta's investigation of the case as well. 

7 JUDGE SULLIVAN: Well, I've already issued an order 

8 finding that the underlying facts are true and that the 

9 violations were committed. So the only issue that's before 

10 the court at this point is what appropriate fine should be 

11 imposed for those violations. And so we have a very narrow 

12 focus. You're absolutely right. The underlying allegations 

13 have been proved by court order after vigorously contested 

14 motion conferences. 

15 And so all I'm trying to do right now is make sure 

16 that I have a sufficient evidentiary record to support what 

17 I'm going to be doing for the rest of this conference, and 

18 perhaps later. And I just want to make sure that we're on 

19 the same page, that this is equivalent to a summary judgment 

20 motion, and that summary judgment motions are supported, 

21 essentially, by evidentiary documentation or testimonial 

22 statements, or, in the alternative, with the assertion by the 

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1 proponent of the argument that such argument can be 

2 translated into testimonial or documentary evidence that's 

3 admissible. And I'm hearing from you that that is, in fact, 

4 the case, and that the person who is most likely to be called 

5 if we ever showed up on Salt Lake City together to present 

6 this material under oath is Julie DeCosta. 

7 

8 

9 

MR. SARGENT: That's correct, Your Honor. 

JUDGE SULLIVAN: Okay. Thank you very much. 

Now, Mr. Tice, turning to you, I have a document 

10 from you that is dated, stamped received in this office as of 

11 September 24, 2013. And you, like Mr. Sargent, made various 

12 arguments in this two-page document. 

13 MR. TICE: Yes. 

14 JUDGE SULLIVAN: You did not submit any testimonial 

15 or evidentiary documentation in support of your arguments. 

16 So my question to you is very similar to the question I just 

17 asked Mr. Sargent. If we showed up in Salt Lake City and 

18 I'm just using Salt Lake City as a hypothetical. If we 

19 showed up in Salt Lake City for a hearing, who would you call 

20 to testify to the evidence supporting the arguments that you 

21 make in your letter? 

22 MR. TICE: Well, I guess that would be myself. I 

Diversified Reporting Services, Inc. 
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1 nean it doesn't seem that I'm making an argument that my 

2 ctions didn't in fact endanger anybody, because the 

3 rontainer was empty, is something that I'm going to argue. 

4 JUDGE SULLIVAN: Okay. I'm not going to ask you to 

5 ~et into the meat of your arguments right now. I just wanted 

6 1co know who, if anyone, you would be calling. And what I'm 

7 rearing from you is that you would be calling yourself. 

8 MR. TICE: Yes. 

9 JUDGE SULLIVAN: Okay. All right. Mr. Tice, I'm 

10 going to stay with you. Based on what you've heard Mr. 

11 Sargent say, do you have any objection or any response to his 

12 identification of Ms. DeCosta as the testimonial expert who 

13 would be able to support his arguments on the stand? 

14 MR. TICE: I would just like to know if she 

15 actually saw the container in question. 

16 JUDGE SULLIVAN: Okay. Well, that's a different 

17 question. 

18 

19 

MR. TICE: Okay. 

JUDGE SULLIVAN: Yeah. Mr. Sargent is basically 

20 saying that Agent DeCosta was the actual person, who, at the 

21 FAA, either who put the civil penalty calculations together 

22 or who could testify how they were done in accordance with 

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1 FAA policy. Do you have any information that would say 

2 differently, at this point, abut the FAA's potential witness? 

3 MR. TICE: No. Certainly not. 

4 JUDGE SULLIVAN: Okay. Mr. Sargent, turning back 

5 to you, Mr. Tice has identified himself as the potential 

6 witness who would testify to any testimony in support of his 

7 arguments. Do you have any objection or any reason to 

8 believe that that information would be incorrect? 

9 MR. SARGENT: No, it would make sense that Mr. Tice 

10 would be the witness on his end. 

11 JUDGE SULLIVAN: Okay. Staying with you, Mr. 

12 Sargent, do you have any objection to me considering, then, 

13 these arguments in terms of the motion for summary judgment 

14 today that have been raised by Mr. Tice with him identifying 

15 himself as his potential witness, should this case ever go to 

16 hearing? 

17 MR. SARGENT: No objection. 

18 JUDGE SULLIVAN: Okay. Mr. Tice, same question to 

19 you. Mr. Sargent has identified Ms. DeCosta as his potential 

20 witness in support of his arguments that he's presented 

21 today. Do you have any objection to me considering all of 

22 those arguments with that evidentiary foundation proffered? 

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2 

MR. TICE: No. I don't. 

JUDGE SULLIVAN: Okay. Then let's talk a little 

3 bit about this, and I'm going to start with Mr. Sargent, 

4 since he's the proponent of the motion. And I will just 

13 

5 caution everybody that in a motion for summary judgment the 

6 court's review of the material is different than if the court 

7 reviews it on simply an evidentiary standard. So in a motion 

8 for summary judgment, all inferences, reasonable inferences, 

9 go to the non-responding party. And that's not true if 

10 you're looking at a case solely for decisionmaking on a 

11 written record. 

12 So we're going to talk first under a standard for 

13 moving for summary judgment, and then we may be talking about 

14 the standard if the parties don't prevail in the way they 

15 want for submission on the written record. So, for the first 

16 part, we're going to talk about the summary judgment motion 

17 with the burden of proof on the proponent with all reasonable 

18 inferences allowed for the non-moving party. 

19 So, Mr. Sargent, there were 10 violations charged 

20 against Mr. Tice arising out of a single incident occurring 

21 on or about September 11, 2012. Those violations were found, 

22 proven after a contested motion earlier this year, and you 

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1 have gone through in your motion material and clearly 

2 

3 

4 

5 

identified in an articulate fashion how your client came to 

the point where it was suggesting to Mr. Tice that a $600 

penalty was fair and reasonable, and just. So I want to talk 

a little bit about the first several prongs that are 

6 contained in your motion, and we'll start with page 2 to 3, 

7 if you want to turn to those pages. 

8 It appears to me in reading your material that in 

9 the first several phases of going through the factors that 

10 are identified by statute, and taking a look at FAA's order, 

11 2150.3(b), Appendix C, that there's very little room :for your 

12 client to have discretion in looking at the case. For 

13 example, once you identify as the found :facts show that the 

14 substance in question was liquid petroleum gas and that it's 

15 categorized as a flammable gas, that just tiptoes you down a 

16 series of steps where you :find that it's Class 2, Division 

17 2.1, in category A, with the weight o:f maximum. It doesn't 

18 appear to be any particular human discretion in that type of 

19 analysis. Would you agree or disagree? 

20 MR. SARGENT: As it applies to that particular 

21 factor, Your Honor, I would agree. 

22 JUDGE SULLIVAN: Okay. And then we go into the 

Diversified Reporting Services, Inc. 

..... 
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1 circumstances and extent factors under the first category of 

2 factors. And, again, it appears that given the particular 

3 facts of this case, there's little, if any, discretion by the 

4 human agent, since the amount that can be carried on an 

5 airline passenger plane is zero, since it's a forbidden 

6 amount, and thus the weight again by nature of the sanction 

7 guidance material is the maximum weight assessed. 

8 MR. SARGENT: I would also agree with that, Your 

9 Honor. 

10 JUDGE SULLIVAN: So then let's go to the fourth 

11 factor in the first category, which is gravity. And, here, 

12 again, you indicate that there really was not, in the way 

13 that the sanction guidance is set up, that there's very 

14 little if any discretion since even though the shipment 

15 didn't cause damage, the lack of damage is not mitigating. 

16 And so there's really nothing to do for you in following the 

17 sanction guidance. It's not mitigating. It's not 

18 aggravating. It's kind of a nullification standard. 

19 Nothing can be done but move on. Would you say 

20 that's true in terms of your argument in the way that you 

21 apply the sanction standard, at least under this prong? 

22 MR. SARGENT: Yeah. I would agree with that, Your 

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1 Honor, such that a lack of harm, so to speak, would not be 

2 considered a mitigating factor. The presence of harm would 

3 likely be considered an aggravating factor, but I think you 

4 captured that fairly accurately, I guess. 

s JUDGE SULLIVAN: Right. And there was no assertion 

6 in the found facts that there was any aggravating factor in 

7 this case scenario under this prong. 

8 

9 

MR. SARGENT: Correct. 

JUDGE SULLIVAN: Okay. So still on page 3 of your 

10 motion, taking into account the FAA's order, 2150.3(b), 

11 Appendix C, our next factor is the culpability factor. And, 

12 again, as you've identified in the bottom paragraph of your 

13 motion, page 3, there were no factors applied to the 

14 weighting analysis because of the answers to various 

15 boilerplate questions that are asked, such as was the 

16 respondent a manufacturer of the material. The answer is 

17 clearly no, and so forth. So no weighting was given under 

18 this factor, because there was no particular culpability 

19 found under this factor. 

20 

21 

MR. SARGENT: That's also correct, Your Honor. 

JUDGE SULLIVAN: Okay. So then, if I go to page 4 

22 of your motion, we start to look at other factors to be 

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1 considered, and this is where I think the parties may have 

2 their primary dispute. In these factors, some of the factors 

3 that you discussed and that have been discussed in other 

4 cases, and in the sanction guidance itself, talk about things 

5 such as an ability to pay, an ability to continue doing 

6 business, and then the catchall of training, future actions 

7 taken in a swift and appropriate manner, those kinds of 

8 things that have often been recognized in other types of 

9 hazardous, material violation cases. 

10 And in this particular case, you indicated the top 

11 of page 4 that you gave ~some consideration" to Mr. Tice's 

12 assertion that a minimal amount of liquefied petroleum gas 

13 remained in the canister at the time. So let's talk a little 

14 bit about that. When you say ~some consideration," what do 

15 you mean by that? 

16 MR. SARGENT: Okay. So, Your Honor, as I write 

17 just after that in the motion, the FAA, with regard to this 

18 factor, would have been perfectly justified in applying no 

19 weighting whatsoever or considering this as any kind of 

20 additional factor, because the fact of the matter is that the 

21 material offered liquefied petroleum gas in this case, is 

22 forbidden. So, essentially, there's no amount that would 

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1 have been acceptable to be offered for air transportation. 

2 However, given the evidence that we had at the 

3 time, which included respondent's assertion that there was a 

4 minute amount of fuel that remained in the canister, we 

5 didn't have --we essentially decided to take respondent at 

6 his word with regard to that assertion, and apply some 

7 mitigation to that factor, despite the fact that it's 

8 arguable that we could and should have maybe applied no 

9 mitigation to that factor. 

10 Even if the material involved or the container 

11 involved was in fact entirely empty and contained only 

12 residue, there's regulations that deal with that, because 

13 this particular material is forbidden and doesn't qualify 

14 under any de minimis or small quantity exception or consumer 

15 commodity. There's no way that the quantity would have 

16 affected its status in being forbidden aboard transportation. 

17 JUDGE SULLIVAN: Well, let's talk about that, just 

18 a minute, if I may. And let's go to 49 C.F.R. § 173.29, just 

19 for a short period of time. And I took a look at that and it 

20 indicated that empty packages are not subject to any other 

21 requirements of this subchapter if they conform to the 

22 following provisions. And then it gives a whole laundry list 

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1 pf different conforming standards, including under (b) (2), if 

2 he package is sufficiently cleaned of residue and purged of 

3 vapors to remove any potential hazard. So are you saying you 

4 could not as a passenger even check an empty, purged canister 

5 pf this particular type of canned propane gas? You can't 

6 ~ven do an empty canister under 49 C.F.R. § 173.29? 

7 MR. SARGENT: No, Your Honor. In fact, if, 

8 somehow, you could prove that the canister, that in fact all 

9 it was was just a canister devoid of any residue or trace of 

10 hazardous materials whatsoever, then I think that's a 

11 different consideration, Your Honor. However, we didn't have 

12 any evidence that, in fact, that was the case, and so closed 

13 my argument that, essentially, that would provide an 

14 affirmative defense. 

15 There was no evidence that in fact that was the 

16 case. So the fact that any amount of fuel remained within 

17 that canister would subject it to its normal classification 

18 as a forbidden material. 

19 JUDGE SULLIVAN: Okay. So you gave some 

20 consideration to Mr. Tice's assertion that a minimal amount 

21 of liquefied petroleum gas remained in the canister. And, as 

22 I understood his argument, he is asserting that it was 

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1 approximately half an ounce, or about a tablespoon of 

2 liquefied petroleum gas. What type of consideration did you 

3 give to that? 

4 I mean, are you looking at, saying, gosh, a 

5 tablespoon of gas wouldn't cause a problem? Or the impact on 

6 the safety hazard is much more minimal than if it was an 

7 actual eight-ounce full container? I mean what kind of 

8 consideration was given to that particular piece of 

9 information, because you don't talk about that at all? You 

10 simply say you gave it consideration, and I'm not quite sure 

11 how you considered it. 

12 MR. SARGENT: But, yes. So I guess we sort of gave 

13 Mr. Tice a break, given the fact that it could potentially, 

14 and given his statements, a rather small enough amount so as 

15 to constitute, I suppose, what might be considered a lesser 

16 safety risk, despite the fact that, arguably, that depends on 

17 the governing body that's designated hazardous materials and 

18 such would likely disagree with us. 

19 JUDGE SULLIVAN: Well, I'm not disagreeing with you 

20 that it is not acceptable. It is not acceptable to try and 

21 check liquid gas in your luggage, for any reason. But, every 

22 case is different and every case is unique; and, clearly, 

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1 passengers have a slightly different standing than businesses 

2 'n terms of their knowledge, their familiarity with hazardous 

I 

3 ~aterials laws and their frequency of use of such things. I 

4 ~ean the statute and the guidance obviously recognizes 

5 passengers in a different class with lower minimum and 

6 ~aximum ranges for violations. And so I just wanted to get a 

7 sense in terms of what your client's use of these factors 

8 were in exercising their discretion and judgment in reaching 

9 this proposed civil penalty. Do you have anything else to 

10 add to that particular section before I go on? 

1l MR. SARGENT: Sure. 

12 JUDGE SULLIVAN: I'll ask you some questions. I'm 

13 going to ask you a couple more questions. And then if I have 

14 missed something or you feel like I need to know something 

15 else, I'll certainly give you a chance to fill in those 

16 blanks. 

17 MR. SARGENT: Sure. So, yeah. At the time Mr. 

18 Tice had provided us with his response and indicated to us 

19 this is before he had the opportunity to participate in a 

20 formal conference, but he had at the time expressed to us his 

21 position with regard to the small amount of fuel, and 

22 indicated, obviously, a compliant attitude, you know, which 

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1 we considered in his favor with regard to assessing a civil 

2 penalty, which we considered another factor as justice might 

3 require, and combine that with the other factors, which 

4 obviously were weighted, you know, differently. 

5 JUDGE SULLIVAN: Why would you -- and let me ask 

6 you this. You had gave a factor that this particular section 

7 of factors says "moderate weight," and you ide~tify it as the 

s "other" factor. And I'm wondering where you went for 

9 guidance on terms of giving it moderate weight versus maximum 

10 weight or minimum weight in this particular section. How do 

11 you know? What leads you or guides you in that regard? 

12 MR. SARGENT: Yeah. And I think if you look at the 

13 policy, 2153(b), there isn't much guidance with regard to 

14 this particular factor, whereas, there's a series of actual 

15 questions that sort of don't direct you into a particular 

16 weighting analysis. This one sort of allows you to consider 

17 the facts as they stand and apply a weight to those factors. 

18 Now, so with regard to the information that he presented to 

19 us, it would have been considered compelling, and compelling 

20 enough so as not to be the result of a maximum weight for 

21 that factor, but not quite so mitigating or compelling so as 

22 to reach us to find a minimum weight should be applied. 

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1 JUDGE SULLIVAN: When I look at the sanction 

2 guidance that is available to the public, it appears to me 

3 that there is ample information provided to give businesses 

4 guidance on some of the factors that they can argue to the 

5 FAA agent or to the legal department on mitigation? There 

6 appears to be very little, if any guidance, regarding those 

7 kinds of things for an individual, particularly an individual 

8 passenger, perhaps because these are not the majority of 

9 cases that at least I see and preside over. 

10 I'm wondering if you can point to me where, if at 

11 all, the sanction guidance deals specifically with passenger12 related mitigating circumstances that don't rise to the level 

13 of business activity. Is it simply a discretionary call for 

14 all of us at this point? 

15 MR. SARGENT: I think to some degree you could 

16 argue that it's a discretionary call, but I also think you 

17 could look at the other factors, as justice might require, 

18 where it discusses evidence of corrective action that exceeds 

19 legal requirements. You know, in other cases, evidence might 

20 be presented to us that someone in response to the notice of 

21 proposed civil penalty went out and took some action to 

22 ensure future compliance that went above and beyond simply 

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1 stating I'm going to comply in the future, you know, things 

2 like participation in FAA outreach programs or something that 

3 was evidence to us that they've gone above and beyond, just 

4 essentially assuring us that they'll comply in the future. 

5 JUDGE SULLIVAN: Are there FAA outreach programs 

6 for passengers in distress? 

7 

8 

9 not know. 

10 

MR. SARGENT: There are, Your Honor. 

JUDGE SULLIVAN: Where can one find those? I did 

MR. SARGENT: Well, typically, again, and it's 

11 something we would handle on a case by case basis. We 

12 usually in that instance would put the respondent in touch 

13 with someone from our hazmat division or even special agent 

14 investigated the case, and they usually worked together to 

15 discuss some sort of -- whether it be material distribution 

16 or a speaking engagement. There's various ways that people 

17 can go about that sort of corrective action. 

18 JUDGE SULLIVAN: So it's basically an individual as 

19 you come, as opposed to a set schedule that's published on20 line or in the newspaper, that kind of thing? 

21 

22 

MR. SARGENT: That's correct. 

JUDGE SULLIVAN: Okay. Let's talk then about the 

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1 minimum weight in this category. You said the facts in this 

2 case did not rise to an assessment of a minimum weight as 

3 opposed to a moderate weight, and that there was no 

4 particular guidance for the weight analysis. Is there some 

5 type of factor that you were hoping to see in this case that 

6 would guide you to minimum that you didn't see, and therefore 

7 you didn't go there? Or is it simply just a matter of 

8 judgment, taking into account all the factors in this case? 

9 MR. SARGENT: I would say more likely the latter in 

10 this case, Your Honor. 

11 JUDGE SULLIVAN: Okay. Let's talk about the total 

12 aggregate weight, which, again, is the last paragraph of page 

13 4 of your motion. As I understand it, this again is a 

14 discretionary call by your client, and you take into account 

15 both all the information that you've acquired through this 

16 step by step sanction guidance analysis and any other matters 

17 that you deem to be appropriate to get to the aggregate 

18 

19 

20 

weight assessment. Is that correct? 

MR. SARGENT: That's correct. 

JUDGE SULLIVAN: And in the sanction guidance 

21 material, at least for businesses, the sanction guidance 

22 talks about an agent's discretion, for example, in weighting 

Diversified Reporting Services, Inc. 
26 

1 the penalty, doing other things that are short of assessing a 

2 penalty. And I know that those kinds of actions do occur, 

3 although not on a regular basis, but do occur. And I'm 

4 wondering, again, if those actions also are available to the 

5 special agent or the FAA employee who is looking at 

6 individual passenger cases like Mr. Tice's. Does the agent 

7 also have the ability to suggest solely administrative 

8 actions or to waive penalties, that kind of thing, like the 

9 agent does with businesses? 

10 MR. SARGENT: Not with regard to this particular 

11 case, or this type of case. I'm sorry, Your Honor. Because 

12 special agents have a process they go through, considering 

13 various factors, one of which is the nature of the material 

14 which are fairly similar to the factor analysis that we use, 

15 which guide their ability to determine the appropriate action 

16 to take in a particular matter with regard to this particular 

17 case. And in the material and the circumstances underlying 

18 this case, that analysis would have required the special 

19 agent to pursue legal enforcement action. 

20 JUDGE SULLIVAN: Okay. And when you say this 

21 special nature, you're talking about the fact that this type 

22 of material is strictly forbidden. You're kind of going back 

Diversified Reporting Services, Inc. 
1 to that? 

2 MR. SARGENT: Correct. 

27 

3 JUDGE SULLIVAN: Okay. Let's go to page 6 of your 

4 motion. You state in paragraph 2 that Mr. Tice's arguments 

5 raised no genuine issues of material fact with regard to the 

6 proposed civil penalty. So when you say that, it appears to 

7 me that perhaps I'm not quite clear when you say that. 

8 Because as I understand it, Mr. Tice is asserting a variety 

9 of different arguments that take issue with how the FAA has 

10 utilized its discretion in assessing the various factors and 

11 whether or not the FAA has included in its assessment all the 

12 factors that Mr. Tice believed are important. 

13 So can you tell me This? You're arguing that, as I 

14 understand it, that between the minimum of $250 and the 

15 maximum of $1,000, within the sanction matrix, that you have 

16 taken the median of about 625. You originally proposed a 

17 $700 penalty and then reduced it after discussion to $600, 

18 and that's what you're proposing to the court. 

19 Is there some reason that the FAA doesn't start 

20 lower than the median? Because as I read the sanction 

21 guidance -- and I'm going to pull that up very quickly 

22 there's a language in the sanction guidance under Section H. 

Diversified Reporting Services, Inc. 
28 

1 This is Appendix C, Section H, where it specifically talks 

2 about the sanctions applicable to air carrier and commercial 

I 

3 operator passengers and crew members. And it says, "The 

4 range for the total civil penalty to be assessed, absent 

5 mitigating or aggravating factors, is 250 (the statutory 

6 minimum) to $1,000." 

7 So if you have a range that begins with 250 and it 

8 ends at 1,000, why would the FAA just automatically jump into 

9 the median, or looking at the penalty range? Is that because 

10 you assessed a total aggregate weight of moderate to maximum? 

11 [The telephone operator interrupted the 

12 proceedings. ] 

13 JUDGE SULLIVAN: I'm sorry. I just got a -- I'm 

14 just getting an automated message from the DOT operator that 

15 our conference call is going to end if we don't take action. 

16 So Mr. Smith has left the hearing room, and he's going to 

17 call the conference operator and extend our time. And I will 

18 let you all know when he returns to the hearing room so that 

19 you know when he's present again. 

20 So, Mr. Sargent, if you could address that 

21 question, if you remember it, please? 

22 MR. SARGENT: Sure. I think if I can rephrase the 

Diversified Reporting Services, Inc. 
29 

1 question, so that I know I'm answering it correctly, the 

2 question was why the FAA doesn't start in the middle of the ... 

3 range or start somewhere else within the range. 

4 JUDGE SULLIVAN: Why don't I ask the question 

5 again? You have a range of $250 to $1,000, absent mitigating 

6 or aggravating factors. So you have the ability to go below 

7 the $250 amount with mitigating factors, and you have the 

s ability to go above the $1,000 amount with particular 

9 aggravating factors. The range you have, obviously, is 250 

10 to 1, 000. The goal is consistency. The goal is public 

11 awareness. 

12 The goal is to provide a message essentially, that 

13 is consistently applied with various different case facts to 

14 the public. So, obviously, the majority of cases should land 

15 between $250 and 1,000, within that matrix range. You have a 

16 total aggregate penalty proposal of moderate to maximum, and 

17 so as I understand the way that you have calculated this 

18 penalty with the guidance factors, you've taken the median of 

19 62 5. 

20 You upped it to 700, and then you reduced it down 

21 to 600 after considering what you could say is minimal 

22 mitigation presented by the respondent in this case. Is that 

Diversified Reporting Services, Inc. 
30 

1 correct in terms of just in general how you approached that 

2 midpoint and how you got there, got from 700 to 600? And 

.... 

3 then I have a question or two to ask you about that. 

4 MR. SARGENT: Sure. No. I think the way we -- so 

5 obviously the way the sanction range that's appropriate for 

6 this case is a reflection of or the weighting analysis is to 

7 be done within the range that were given or the applicable 

s range for a particular case. So we go through our weighting 

9 analysis, applying all the statutory factors of which the 

10 mitigating information is done within that factor analysis. 

11 So the way we calculate it, considering each factor 

12 as we did with regard to each fact that applied in this case, 

13 we arrived at our weighting analysis. So the weight in this 

14 case happened to be moderate to maximum, so we look at that 

15 in terms of obviously the calculation being the median, 

16 median minimum and maximum within that range. 

17 So a moderate penalty would be somewhere within 

18 that middling 625 figure, more or less. With regard to this 

19 case, it was moderate to maximum, which would have put it 

20 higher than that, which arguably could have put it higher 

21 than that 625 figure. Given the information that we 

22 considered both prior to and after Mr. Tice' s informal 

Diversified Reporting Services, Inc. 
31 

1 conference, which we thought that there was additional 

2 information-to support a lesser weighting with regard to the 

3 other factors, we chose the $600 penalty, which arguably is 

4 below the median. So, despite the fact it was a moderate to 

5 maximum weight, we chose a penalty that was more reflective 

6 of a moderate weight. 

7 JUDGE SULLIVAN: Okay. Thank you. And I'll simply 

8 note that Mr. Smith has returned to the hearing room and our 

9 conference time has been extended. 

10 When you look at a moderate range and a minimum 

11 range and a maximum range, within the 250 to 1,000, are those 

12 fairly flexible ranges within the sanction guidance? So, for 

13 example, a minimum range could be potentially 250 to 400; a 

14 moderate range could be potentially 400 to 800; a maximum 

15 range could be 800 to 1,000? Or, is it somewhat more 

16 flexible than that? 

17 MR. SARGENT: And, again, it's not an exact 

18 application, but I would say that's relatively accurate. You 

19 know, something in the moderate range would be more likely to 

20 be in that area you described. 

21 JUDGE SULLIVAN: Okay. And, let's assume that 

22 well, I shouldn't say let's assume. There's no question that 

Diversified Reporting Services, Inc. 
32 

1 his particular fact pattern shows some maximum weight, given 

2 krithout any discretion at all. But as I understand the 

3 ~tatute and the guidance material and your argument, the FAA 

4 ~ould have assigned a maximum total aggregate weight, or it 

5 ~ould have assigned a minimum total aggregate weight, 

6 depending on how you looked at these factors and made some 

7 decisions. 

8 MR. SARGENT: Well, I guess you could say, 

9 arguably, any case we could assign a minimum weight or a 

10 ~aximum weight. Given the factors that were present in this 

11 case and the facts as we knew them and know them today, I 

12 would submit we wouldn't have, or couldn't have -- in 

13 following our guidance, couldn't have assigned a minimum 

14 weight. 

15 JUDGE SULLIVAN: In following your guidance as you 

16 understand it for an individual passenger, is there ever a 

17 time to your knowledge that an individual passenger could 

18 inadvertently, as Mr. Tice has asserted, checked a forbidden 

19 substance and achieved, potentially, a minimum total 

20 aggregate weight in the civil penalty assessment phase? 

21 MR. SARGENT: Absent some extraordinary, mitigating 

22 factors that I have not in my experience been privy to, I 

Diversified Reporting Services, Inc. 
1 don't believe that given that material, or, well, I should 

2 say given the types of factors that \vere present here, I 

3 don't believe that it would have been a minimum. Now, 

4 there's other factors that didn't apply to this particular 

5 case, which might have affected that analysis, such as 

6 financial ability to absorb the penalty and other sorts of 

7 things, corrective action, those sorts of things. So I 

33 

s wouldn't say that that's an absolute by any means, but with 

9 regard to the particular factors that were present here, it 

10 wouldn't have resulted in a minimum penalty. 

11 JUDGE SULLIVAN: Okay. Thank you. Do you have 

12 anything else that you would like to add to your primary 

13 argument before I turn to Mr. Tice? And I will be giving you 

14 an opportunity for final reply, of course. 

15 MR. SARGENT: No, Your Honor. Just again, we 

16 understand while Mr. Tice hasn't pled any specific, 

17 affirmative defenses, that he has submitted or set forth a 

18 number of issues he's taken with the way we calculated the 

19 civil penalty, which I'm sure he's about to talk about. 

20 However, none of the points that are about to be raised are 

21 those that ultimately would be considered in the way we 

22 arrived at our penalty. 

Diversified Reporting Services, Inc. 
34 

l JUDGE SULLIVAN: Well, is it your position if yol' 

2 an show you followed the guidance that this court has to 

3 dopt it? 

MR. SARGENT: Yes. 4 

5 JUDGE SULLIVAN: So this court has no discretion at 

6 all other than to rubber-stamp the proposed penalty you offer 

7 [ne? 

8 MR. SARGENT: No, and let me clarify, Your Honor. 

9 I believe that if the court finds that we've acted in 

10 accordance with our policy and guidance that the court should 

11 defer to our application of our sanction guidance policy 

12 provided. It wasn't done in an arbitrary and capricious 

13 manner. I don't believe there's any facts that the 

14 respondent can raise or that would be present in this case 

15 that would show that we acted in an arbitrary and capricious 

16 manner. 

17 JUDGE SULLIVAN: Do you have case law that supports 

18 that there has to be a finding of arbitrary and capricious 

19 action before the court can exercise its own discretion? 

20 MR. SARGENT: Not with regard to this particular 

21 matter, Your Honor; but, in general practice, the agency that 

22 has followed its own guidance, we would typically ask that 

Diversified Reporting Services, Inc. 
35 

l the court defer to that. 

2 JUDGE SULLIVAN: I understand that. I guess my 

3 concern is, and I think you probably have heard some of that 

4 in my questioning, is that the guidance for individual 

5 passenger violations such as this one is very slim. And 

6 because of that, that creates an open door for not only a 

7 larger, discretionary decisionmaking by your client; and I 

s don't necessarily take exception to that at all, but it also 

9 means that your client may not be looking at all the 

lO different factors that could be utilized that are not spelled 

ll out in the sanction guidance material. And, sometimes -- not 

l2 always but sometimes -- there are many different factors that 

l3 can come into play that an agent used to using the guidance 

l4 for another purpose may not be considering or thinking about 

lS as having genuine weight in assessing a penalty. 

l6 That's not to say that I agree that's happened here 

l7 or disagree for the time being, because I haven't heard 

lB argument from Mr. Tice. But I think in these particular 

l9 cases, because there is so little guidance and so much 

20 depends on the individual facts that there is room for 

2l disagreement, and reasonably so. 

22 So, Mr. Tice, that leaves me to you. Let's talk a 

Diversified Reporting Services, Inc. 
36 

1 ~ittle bit about your materials, and I'm going to go to page 

2 of your materials. And I'm going to ask you a couple 

3 ~uestions to start off, and I'm going to dove-tail a little 

4 pit on Mr. Sargent's argument. 

5 One of the things that Mr. Sargent has mentioned in 

6 his oral argument, and I think in some of his written 

7 materials, is that you have not raised an affirmative defense 

s of a lack of ability to pay. You're not required to do so, 

9 certainly. Some people do and some people don't. My 

10 question to you, since you are a lay person representing 

11 yourself, is whether or not you knew that you could raise 

12 that defense and whether or not you are inferring or 

13 informally pleading that type of defense here. Was that 

14 something you knew about? 

15 MR. TICE: Well, yes, Judge. You know, I mean I 

16 see myself as a law abiding member of society, and I fully 

17 expect to pay any debts that I reasonably owe society; and, 

18 whether or not it's a burden to me or not to do that, I 

19 intend to do that. So I just don't want to go there -- pay 

20 whatever fines that appropriate. 

21 JUDGE SULLIVAN: Okay. So just so that we're clear 

22 that that's an affirmative defense that you know you have, 

Diversified Reporting Services, Inc. 
37 

1 ~nd you're choosing not to r~ise it, I'm fine. I just want 

2 o make sure that you know that. 

3 

4 

MR. TICE: Yes, ma'am. 

JUDGE SULLIVAN: Okay. So let's talk about some of 

5 these different factors. You heard me go through the FAA's 

6 primary argument, and it appeared to me from the arguments 

7 that you have on page 1 and page 2 of your materials that you 

8 take exception to the FAA's $600 proposed penalty and that 

9 you think it should be lower. Is that correct? 

10 MR. TICE: It is correct. 

11 JUDGE SULLIVAN: Okay. You indicated on page 2 of 

12 your two-page materials in, I think, the third paragraph, 

13 that you want to have the minimal penalty. Are you aware 

14 that the minimal penalty under the guidance is $250? 

15 MR. TICE: Yes, I am aware of that. 

16 JUDGE SULLIVAN: Okay. Was that what you were 

17 referring to when you said you wanted -- and I'm going to 

18 quote -- "a minimal penalty?" 

19 MR. TICE: Well, as you brought up earlier, and as 

20 you said, I understand this better than I do, I think there 

21 are mitigating circumstances that where the penalty can be 

22 lower than $250, even though that is what you --

Diversified Reporting Services, Inc. 
38 

1 JUDGE SULLIVAN: Well, tell me first Hhat your goal 

2 is in terms of the penalty, and then we can talk about how 

3 you think you can get there. If you are not asking for the 

4 court to consider $250, what sum are you asking the court to 

5 consider on your behalf? 

6 MR. TICE: Well, my goal is just justice and 

7 fairness, and for people. You know, there needs to be room 

s in society for people to make honest mistakes and not have 

9 the book thrown at them by the government. Again, I've said 

10 from the first that I believe that this thing should have 

11 been handled administratively and not civilly, and I still 

12 don't understand why that couldn't have been. 

13 JUDGE SULLIVAN: Okay. So let me ask you again. 

14 What penalty are you asking me to consider? What amount of 

15 money are you suggesting that I have in my head in looking at 

16 your side of the story? 

17 MR. TICE: Is that really appropriate for me to 

18 say? 

19 JUDGE SULLIVAN: You should be telling me what 

20 amount of money you think is fair, if $600 is not fair? So, 

21 for example, you could say $250. You could say $400. You 

22 could say $1. Just tell me what it is that you honestly 

Diversified Reporting Services, Inc. 
39 

1 believe is an appropriate amount of money to assess you for 

2 these 10 violations that have been charged and found against 

3 you? 

4 MR. TICE: What I honestly believe? 

5 JUDGE SULLIVAN: Yes. 

6 MR. TICE: I honestly believe it should have been 

7 handled administratively, and there should be no civil 

s penalty. But, I will also say whatever civil penalty, if you 

9 feel that a civil penalty is appropriate, I believe that the 

10 civil penalty should be stayed until I -- unless I were to 

11 reoffend. 

12 The only possible justification I can see for 

13 pursuing a civil penalty in a situation such as this where an 

14 honest mistake was made is to make sure that it doesn't 

15 happen again. And, so, it seems to me the best course of 

16 action here would be to say, okay. Here's your penalty. We 

17 understand it was a simple, unintentional mistake. Don't do 

18 it again. If you do do it again, your penalty will be more 

19 severe because you have done it again. 

20 So I think this is the way these cases -- not this 

21 particular case, but in other courtroom situations when 

22 offenses happen, I think the legal terms stating the penalty 

Diversified Reporting Services, Inc. 
40 

1 where, you basically said, just don't do it again. And that 

2 seems to be the appropriate figure for the goal of keeping 

3 the planet safe, which we all share. 

4 JUDGE SULLIVAN: Let me ask you a couple questions 

5 about that. You say that this case should have been handled 

6 administratively, instead of going into a penalty phase. 

7 What do you mean by that? What would you have liked to have 

8 seen happen instead of having the case charged, and then 

9 ultimately reach my desk? 

10 MR. TICE: A letter from the FAA, you know, 

11 informing me of my mistake, showing to me that the government 

12 does take their obligation to keep the airplanes safe 

13 seriously, and that they consider this to be a serious 

14 mistake. As do I. I don't believe -- you know. I certainly 

15 don't think that people should check fuel of any kind on 

16 planes, and it was a mistake. 

17 I understand that. But, you know, people do make 

18 mistakes, and so I think that that could be recognized here. 

19 And I would feel good about the actions that my government 

20 has taken if they had done that instead of feeling as I do 

21 that that's not appropriate. 

22 JUDGE SULLIVAN: You indicated that you would 

Diversified Reporting Services, Inc. 
1 prefer if a civil penalty was assessed that it be stayed. 

2 That is the correct term that is used in other situations. 

3 In this particular forum, we don't stay civil penalties. 

4 It's not an option that I have available in my judicial 

5 toolkit. So I understand the sentiment, but I can't offer 

6 you that particular type of relief. 

41 

7 Let's assume that I am considering assessing civil 

8 penalty against you. If zero is not available to you, what 

9 is your second option? Do you have any option to offer me 

10 other than the $600 proposal proffered by your friend across 

11 the aisle? 

12 MR. TICE: Well, I offered to settle this case to 

13 him previously for -- for $50, and he didn't think that that 

14 was appropriate, so. 

15 JUDGE SULLIVAN: Okay. So your second option is to 

16 go below the statutory minimum because of mitigating 

17 circumstances, as I understand your argument. What 

18 mitigating circumstances do you want to highlight for me that 

19 would support your suggestion? 

20 MR. TICE: Well, the ones that I tried to outline 

21 in my written response, that it was a completely inadvertent, 

22 honest mistake, that the canister was essentially empty and 

Diversified Reporting Services, Inc. 
42 

1 'twas a piece of trash that should have been just disposed 

2 ~f. Those are the mitigating factors that I see. 

3 JUDGE SULLIVAN: You also indicated that you wanted 

4 che fine to be fair and reasonable. Let me ask you a 

s Ruestion as you wear your attorney hat for yourself. If I 

6 ~ranted your request for a $50 fine, I understand that you 

7 ~ould think that would be fair and reasonable. But, part of 

s the fine's purpose is to create a deterrent effect, not only 

9 for you, but for everyone in the public forum. 

10 Is it your argument that $50 would serve that 

11 particular policy, that people would feel cured by a $50 

12 fine? 

13 MR. TICE: Well, yes. And let me -- the problem is 

14 deterrent in a situation like this was, is just an honest 

15 mistake. It's really hard to-- I mean people make mistakes. 

16 You know? I know that if I would never forget a single 

17 thing again for the rest of my life -- and I think we all 

18 would, but that's just not the human condition, 

19 unfortunately. So we're stuck with our human frailties, and 

20 in this case I ran afoul of my own --

21 JUDGE SULLIVAN: I'm sorry. I didn't hear the last 

22 part, sir. 

Diversified Reporting Services, Inc. 
1 MR. TICE: I said in this case I ran afoul of my 

2 own human frailties. I certainly didn't intend to do this. 

3 I made a mistake. 

4 

5 

JUDGE SULLIVAN: Okay. Thank you. 

MR. TICE: Having gone through this whole 

6 experience with all this time and all these hearings, and 

7 blah, blah, blah, I think that's the real deterrent for me. 

8 So I never want to go through this again. This is awful. 

9 

10 

11 

JUDGE SULLIVAN: Okay. 

MR. TICE: Not the money; it's all of this. 

JUDGE SULLIVAN: Okay. Thank you. Let's talk 

12 about -- a little bit about -- page 2 of your two-page 

43 

13 materials. You have at the bottom of the page some material 

14 that's in italicized writing, and it talks about a comparison 

15 of the forbidden, liquid petroleum gas that was in your 

16 canister to Isobutene, a refrigerant under the trade name of 

17 R-600A, as you assert. And you're asserting that this 

18 particular substance is equal or similar to the petroleum gas 

19 that you tried to ship and didn't, essentially, and that this 

20 particular refrigerant, basically, is permitted as checked 

21 bags on passenger carrying airplanes. Do you see that on 

22 page 2 of your materials? 

Diversified Reporting Services, Inc. 
1 

2 

44 

MR. TICE: Yes. 

JUDGE SULLIVAN: Okay. What makes you think that 

3 this particular refrigerant is similar or exactly the same as 

4 the liquid petroleum gas that was in your container? Where 

5 do you get that? 

6 MR. TICE: If you look it up on Wikipedia, that's 

7 how it's described, as that Isobutene is also sold under the 

s trade name that I gave there and it's used as a refrigerant. 

9 JUDGE SULLIVAN: Okay. So this is something that 

10 you did some research on on the web? 

11 

12 

MR. TICE: Yes, ma'am. 

JUDGE SULLIVAN: And I need to know this. Do you 

13 have any particular expertise in this field to make these 

14 kinds of statements? 

15 MR. TICE: No, certainly not, and that's why I put 

16 it in italics, and that's why I said it's out of the scope of 

17 this hearing, and it certainly is. I only meant it to be 

18 helpful, and if it wasn't helpful, I apologize. 

19 JUDGE SULLIVAN: Okay. I just want to make sure I 

20 know where this is coming from. Okay. You also state up 

21 above on that same page 2 that "The quantity of fuel that you 

22 offered was nearly identical to that in cigarette lighters." 

Diversified Reporting Services, Inc. 
45 

l Do you see that? That's the first, full paragraph on page 

2 2. 

3 

4 

MR. TICE: Yes, ma'am. 

JUDGE SULLIVAN: Okay. And are you making that 

s analogy again based on some research that you did or personal 

6 knowledge? Where do you come up from with that? 

7 MR. TICE: Well, yeah. It's personal knowledge. I 

s had used the stove to the point where, as I said before, I 

9 was worried of running out of fuel. I was babying it along 

lO to try to make it last to the end of the trip. It was 

ll essentially empty. I'm quite confident that if we had the 

l2 container and fuel to examine this evidence, as I feel we 

l3 should be able to have, that we would see clearly that there 

l4 was less fuel in there than there is in a whole cigarette 

l5 lighter. 

l6 JUDGE SULLIVAN: All right. It appears undisputed 

l7 that you and the FAA had some discussion about this case 

lB before it was referred to my office. And, at that time, 

l9 during that discussion, were you offered some type of 

20 educational training with the agent or some other entity with 

2l the FAA as part of a settlement agreement? 

22 MR. TICE: No, and I would have liked to have been. 

Diversified Reporting Services, Inc. 
46 

1 I mean just hearing that for the first time today that there 

2 might have been options for that, and if there would have 

3 been, I would have liked to have known about it. 

4 [Pause.] 

5 

6 

MR. TICE: Hello? 

JUDGE SULLIVAN: Yes, I'm still here. I'm looking 

7 through my notes. I'm sorry I should have mentioned that 

8 moment of silence. Is there anything else that you would 

9 like to add to your argument at this time before I turn back 

10 to the FAA's attorney? 

11 MR. TICE: No, ma'am. 

12 JUDGE SULLIVAN: Okay. Mr. Sargent, is there 

13 anything else that you would like to add to your reply? 

14 MR. SARGENT: Your Honor, just again, having heard 

15 Mr. Tice's assertions and the factors he wants to be 

16 considered, the reason why the FAA doesn't believe that 

17 there's any reasonable dispute is because the factors or the 

18 arguments that are raised are already covered by the 

19 application of our policy or a matter of law, particularly 

20 the fact that, again, we understand this was an honest 

21 mistake. But the fact that no damage occurred or that there 

22 was no --Mr. Tice doesn't consider this to be an actual 

Diversified Reporting Services, Inc. 
47 

1 threat to somebody, it's irrelevant, and, in fact, something 

2 we already discussed as part of our policies, not something 

3 that factors -- would be factored in his favor into the 

4 sanction analysis. 

s And the fact that Mr. Tice doesn't believe this 

6 matter should be prosecuted or should result in something 

7 other than a civil penalty prosecution, also flies in the 

8 face of our policy. And, in fact, there's legal authority 

9 that I think I cited in my motion, the Heckler v. Chaney 

10 case, where that's not something that's up for consideration. 

11 The FAA has granted the prosecutorial discretion in t.hese 

12 types of cases from the court and exercised that discretion 

13 and applied its policy. 

14 Again, the sanction that was selected in this case 

15 wasn't done in an offhanded manner. It was the result of a 

16 careful calculation of all the factors that were put before 

17 us. This certainly wasn't arbitrary or something that we 

18 just decided should happen. We looked at all these factors. 

19 We applied our guidance the best we could, given the factors 

20 that were available to us, and arrived at the number, the 

21 $600 figure that we're at today. 

22 So that's all I have to offer, Your Honor. 

Diversified Reporting Services, Inc. 
48 

1 JUDGE SULLIVAN: Okay. And I'm looking at page 6 

2 of your motion materials, and I did read these materials 

3 quite carefully. And I would agree 'tli th you that you have 

4 the ability to exercise broad discretion and prosecution of 

5 these cases in deciding whether to bring a legal enforcement 

6 action or in making decisions to compromise or settle the 

7 action. 

8 I have no dispute about that, whatsoever, but this 

9 case did not settle, and it was not compromised under your 

10 watch. And so this court has an obligation to take a look at 

11 the facts anew. And as I understand my statutory and 

12 regulatory duty, I am supposed to exercise my sound judgment 

13 and independent discretion in doing a review of this. 

14 Let me ask the two of you this, and I'll start with 

15 you, Mr. Sargent. And this kind of dovetails into our first 

16 discussion. It appears to me that the parties have presented 

17 a fairly sound and complete argument about what their 

18 positions are regarding the $600 proposed penalty. If this 

19 court does not grant full summary judgment on motion today, 

20 would you feel comfortable with the written materials as-is, 

21 for a decision on the merits based on the written materials? 

22 MR. SARGENT: Are you asking me, first, Your Honor? 

Diversified Reporting Services, Inc. 
1 JUDGE SULLIVAN: Yes, I always go to the 

2 prosecuting agent, first. I'm sorry I didn't make that 

3 clear. 

49 

4 MR. SARGENT: Urn. I think at this point the agency 

5 would be comfortable with that. 

6 JUDGE SULLIVAN: Mr. Tice, turning to you next, 

7 same question. And I may need to explain that a little bit 

8 if you would like. Do you understand the question? 

9 MR. TICE: No. I wish you would explain it a 

10 

11 

little bit, please. 

JUDGE SULLIVAN: Sure. Currently, this motion is 

12 before the court as a dispositive, prehearing motion, and as 

13 a dispositive prehearing motion there is a certain standard 

14 of review that the court must utilize that is different from 

15 the standard of review that the court utilizes when it simply 

16 looks at the evidence before issuing a decision on the 

17 merits. Under the review standard for a motion for summary 

18 judgment, the court looks at whether there is any material 

19 issue of fact in dispute. And, in looking at that issue, the 

20 court looks at all the disputed issues in a light most 

21 favorable to the non-moving party; and, in this case, that's 

22 you. 

Diversified Reporting Services, Inc. 
50 

1 So let's assume, just for the sake of argument, 

2 that I find today that there are some issues of material fact 

3 that are in dispute because I've looked at them in a light 

4 most favorable to you. The next step would be then a 

5 decision on the merits without having that special standard 

6 utilized. And when I say "decision on the merits," then I 

7 would look at the materials again and I would weigh them to 

8 see, number one, whether the prosecuting agent, the FAA, has 

9 made a prima facie case under a preponderance of evidence 

10 standard; and, number two, whether in your responsive 

11 materials you have raised sufficient factors or arguments 

12 that would give me a basis to decide whether or not the FAA 

13 was correct in assessing the proposed $600 penalty, and then 

14 I would issue a decision. 

15 That means that there would not be a hearing. 

16 would simply do it on the written record, as opposed to 

17 having everybody appear and basically tell me exactly the 

I 

18 same thing that you told me today. So, what I'm saying, and 

19 I didn't say this very well, as I listen to myself talk, is 

20 that I'm asking you if you feel comfortable with the amount 

21 of material that you've submitted today and the arguments 

22 that you submitted today to forego appearing in person and 

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1 simply resting on the written record, and letting me make a 

2 decision on the written record and the oral transcripts that 

3 we have so far. 

4 MR. TICE: Yes, ma'am. It does seem a little 

5 foolish to have people appear and say the same thing that's 

6 already been said. 

7 JUDGE SULLIVAN: Yeah. And I just want to make 

8 sure that you feel comfortable with that, because it sounds 

9 like we really covered, I think, everybody's issues fairly 

10 well, but I don't want to make that decision for you. 

11 

12 

13 

14 

15 

MR. TICE: Yes. 

JUDGE SULLIVAN: And it sounds like you're okay. 

MR. TICE: I am. 

JUDGE SULLIVAN: Okay. Then what I will do is I'm 

going to look at this a little bit more. I will make a 

16 decision on the motion for summary judgment, which is the 

17 dispositive motion before me. If I don't rule in the FAA's 

18 favor, I will then take the matter under advisement on the 

19 written submission, and I will not set a hearing. I will 

20 simply issue an order on the written record. And, so, that 

21 means, essentially, that today is the last day that we will 

22 be talking to each other. And, Mr. Sargent, it's my 

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1 understanding that that's acceptable to you that we're not 

2 going to have a hearing, that this is our last time to speak 

3 to each other. 

4 MR. SARGENT: Yes, it is, Your Honor. And the 

5 agency and myself probably should have been clearer, but 

6 that's essentially what was the intent of the motion that we 

7 filed in the first place, Your Honor. 

8 JUDGE SULLIVAN: Oh, okay. Well, I would recommend 

9 something different in the future, because if you make a 

10 dispositive motion like this, I have to make a ruling under 

11 the dispositive motion standard. If you and the opposing 

12 side have agreed for argument on written submissions only, 

13 you really need to tell me. I never make that inference by 

14 myself. 

15 

16 

MR. SARGENT: Understood, Your Honor. 

JUDGE SULLIVAN: Okay. Thank you. 

17 Mr. Tice, just so that we're clear, you understand 

18 that, essentially, you would be giving up your right to a 

19 hearing in person and that this will be the last time we talk 

20 to each other about this. 

21 MR. TICE: Yes, I do understand that and I am okay 

22 with it. I mean I understand that if you were to do 

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1 something that I completely disagree with, I still have other 

2 

3 

4 

5 

avenues of appeal. I mean I don't 

JUDGE SULLIVAN: Yeah. 

MR. TICE: -- think I'm giving those up. Am I? 

JUDGE SULLIVAN: Yes, you would. And, in fact, I 

6 usually put in my decisions how much time you have to write a 

7 request for an appeal and who you send it to. 

8 

9 

MR. TICE: Yes, thank you. 

JUDGE SULLIVAN: Yeah. So you'll see that, and 

10 it's usually right above my signature or right below it on 

11 the very last page, if you want to jump to the end. So 

12 you'll see that, and either party can appeal, so I recall 

13 correctly. 

14 Okay. Then I'm going to thank you all very much 

15 for your materials, for your arguments today and for your 

16 presence. I apologize that this took longer than we had 

17 scheduled, but it was very, very helpful for me to hear this 

18 extended argument. 

19 With that, Mr. Sargent, is there anything else you 

20 would like to add or correct, or comment on, on behalf of 

21 your client today? 

22 MR. SARGENT: No, Your Honor. 

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1 JUDGE SULLIVAN: Okay, Mr. Tice. On behalf of 

2 yourself, anything you would like to add, correct or cornnent 

3 on before we close today? 

4 MR. TICE: No, Your Honor. 

5 JUDGE SULLIVAN: Okay. Thank you all very much for 

6 your presence. It appears our business is complete. Since I 

7 won't be talking to you again, I want to wish you all a very 

8 happy holiday, however you choose to celebrate it. With 

9 that, we can go off the record and I wish you all a good day. 

10 Thank you so much. 

11 [The telephone prehearing motion conference was 

12 concluded at 3:00p.m.] 

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