04/10/2012 08:51 FAX 3107256816 AWP-7

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

ln the Matter ofConrad Rzewuski.
Respondent FAA Docket No. [To be Assigned] DMS No.: FAA 2012-0021 FAA Region: Western Pacifi(: Judge: Richard C. Goodwin li1J 002

COMPLAINANT'S MOTION TO DEEM ALLEGATIONS ADMITTED AND MOTION FOR DECISION OR, IN THE ALTERNATIVE. MOTION TO LIMIT THE ISSUES AT HEARING TO SANCTION To: Hon. Richard C. Goodwin, Administrative LawJudge, and to Comad Rzewuski,

1"Respondent"): COMES NOW, the Regional Counsel ofthe Western-Pacific Region ofthe Federal Aviation Administration (FAA), by counsel, and files this Motionto Deem Allegations Admitted and Motion for Decision to issue an order assessing civil penalty, orinthe alternative, to deem allegations admitted and to limitthe hearing to the amount ofthe t'anction pursuant to sections 13.218(a) and (f)(5), and 13.209(f) ofTitle !4 ofthe Code of Federal Regulations. This motion is based onthe fact no answer has been filed by Respondent. Section 13.209(f) ofthe Rules ofPractice [14 C.P.R. Section 13.209(f)] states: "A person's failure to file an answer without good cause shall be deemed an admission to the iruth ofeach allegation contained in the complaint." The Complaint and accompanying cover Jetter in this case were sent to Respondent onJanuary 25, 2011. The Complaint alleged:04/10/2012 08:51 FAX 3107256816 AWP-7

L On or about July 6, 2011, at approximately 2230 local time, Respondent struck a Phoenix Police helicopter that-was flying near Phoenix, Arizona, with a beam oflight from a laser pointer. 2. The beam oflight interfered with a crewmember inthe performance ofthe crewmember's duties aboard that aircraft. Respondent was advised ofthe requirement to file an answer inthe coverletterthat uccompani.ed the Complaint. Respondent was also advised ofthis requirement in the A.dministrative Law Judge's February 16,2012, Procedural Order served upon all parties at their addresses ofrecord. Section 13.209(a) ofTitle 14 ofthe Code ofFederal Regulations [14 C.P.R. section 13.209(a)] requires a respondent to file an answer no later thanthirty (30) days after service. Pursuantto section 13.211, the date ofservice is the date onthe proofofservice, and after service by mail, an additional five (5) days is added to the prescribed period for a response. Accordingly, an answer was due onFebruary 29, 2012, which is thirty-five (35) days after 141003

January 25, 201 1, (the date the Complaint was served). To date, no answerhas been received by Complainant from Respondent, nor has there been a request for an extension. oftime in

.which to file an answer. 

### Inview ofthe above, Complainant moves thatthe allegations inthe

complaintbe deemed admitted. As a result, there is no genuine issue ofmaterial fact and the Complainant is entitled to a decision as a matter oflaw. Complainant requests that the Judge issue an Order Assessing Civil Penalty in the amount of$7,700.00. Alternatively, it is moved thatthe allegations be deemed admitted and tl1e hearing be limitedto the issue ofthe amount ofthe sanction. The sanction requested 

### in this case is reasonable. The FAA's publicly available sanction guidance table is contained in Appendix B ofFAA Order 2150.3B. For individuals not serving inthe capacity ofairmen, the sanction guidance table, Figure B-3" 204/10/2012 08:51 FAX 3107256816 AWP-7

p.(l),lists a maximum civil penalty for "Interference with a crewmember (14 C.:F.R. 91.11.. .)." FAA Order 2150.3B, Appendix B paragraph 3.c.(9), states that for an mdividual not serving in the capacity ofan airman1 and has violated a regulation covered tmder 49 U.S.

### C.§ 4630l(a)(5)(A)2
, the maximum civil penaltyrange is $4,400 to $11,000. Chapter 7 ofFAA Order 2150.3B, which is also available to the public, provides 1,'1lidance for applying the sanction ranges listed in Appendix 

### B. Ao appropriate sanction is selected by beginning with an amount inthe middle ofthe range listed in the sanction guidance table and,increasing that amount for aggravating factors and decreasing the amount for mitigating factors listed in Chapter 7, paragraph 

## 4? Therefore, under the guidance in FAA Order 2150.3B an appropriate civil penalty for Respondent's violation (>f § 91.11, which had no mitigating or aggravating factors, is the middle ofthe sanction range listed above, or $7,700. Complainant's choice ofsanction 

### inthis case as itis not arbitrary, capricious, or othernise not according to law. 4 Complainant has selected a civil penalty corresponding to the range indicated inthe sanction guidance table ofFAA Order 2150.3B.

1Respondent was not acting as an ainnan. 2 49 U.S.C. § 46301 (a)(5)(A) states: "An individual (except an ainnan serving as an ainnan) or small business concern is liable to the Government for a civil penalty ofnot more than $10,000 for violating4'11 004

(i) chapter 401 (except sections 40103 (a) and (d), 40105, 40106 (b), 40116, and 40117), section 44502 (b) or (e), chapter447section 44502 (b) or (c), chapter 447 (except sections 44717--44723), or chapter 449 (except sections 44902, 44903 (d), 44904, and 44907-44909) ofthis title; or (ii) a regulation prescribed or order issued under any provision to which clause (i) applies." The statutory authority for 14 CFR § 91.11 is 49 US.C. § 44701 (a)(5), which states: "The Administrator ofthe Federal Aviation Administration shall promote safe flight ofcivil aircraft in air commerce by prescribing-
___(5) regulations and minimwn standards for other practices, methods, and procedure the Administrator ftnds necessary for safety in air commerce and national security.'' 1'hus, Respondent violated regulations prescribed under provisions to which clause (i) of§ 46301 (a)(5)(A) 'pplies. 3 FAA Order 2150.3B, paragraph 5.b.(3). 4 See, 49 U.S.C. § 44709(d)(3)
304/10/2012 08:51 FAX 3107256816 AWP-7

Based on the foregoing, Complainant is entitledto a decision inits favor thall. Respondent committed the violation charged and shouldbe assessed a civil penalty rvf $7,700.00. In

### the alternative, the only issue appropriate for the hearing is the amount 

### ofcivil penalty.
Respectfully submitted, NAOMI TSUDA Regional Counsel
By:

# .#~Zll Adam Runkel Attorney
Dated: APR 10 

### 2012

4 14100504/10/2012 08:52 FAX 3107256816 AWP-7



### CERTIFICATE OF SERVICE I hereby certifY that on this date I sent viaUnited States mail, postage prepaid, the executed original and one copy, as well as one copy by facsimile, ofthe COMPLAINANT'S MOTION TO DEEM ALLEGATIONS AD.MJTTED AND MOTION FOR DECISION, OR JN THE ALTERNATIVE MOTION TO LI.MJT ISSUES AT HEARING TO SANCTION, addressed as follows: Federal Aviation Administration 800 Independence Avenue, SW Washington,DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000 Facsimile: (202) 493-5142 And by facsimile only to: Hon. Richard C. Goodwin Office ofHearings, M-20 U.S. Department ofTransportation ·1200 NewJersey Ave., S.E. East Building Ground Floor, Room El2-230 Washington, D.C. 20590 Facsimile: (202) 366-7536 1{1]006



### I further certifY that onthis date 

### I sent 

### via United States mail, postage prepaiit, 

### a true copy ofthe COMPLAINANT'S MOTION TO DEEM ALLEGATIONS ADMITTED AND MOTION FOR DECISION, OR IN THE ALTERNATIVE MOTION TO LIMIT ISSUES AT BEARINGTO SANCTION, addressed

### as follows: ·comadRzewuski 7360 W. ViaDel Sol
·Glendale, AZ 85310 Dated: APR 10 2012

# _;r-~ JeffK-berg, Legal

## Technici~ Office ofthe Regional Counsel Federal AviationAdministration 

### Vlestern-Pacific Region Lawndale, California
5