UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC In the Matter of: BRIAN WALLAESA FAA Order No. 2013-2 DocketNo. CP10WP0010 FDMS No. FAA-2010-0628 1 Served: May 14, 2013 DECISION AND ORDER' Respondent Brian Wallaesa appealed from a written initial decision' issued by Chief Administrative Law Judge Ronnie A. Yoder ("ALJ"), finding that Wallaesa violated 14 C.P.R. §§ 121.317(f),' 121.317(k),5 and 121.580,6 while he was a passenger onboard a Southwest Airlines flight. Sections 121.317(f) and (k) require passenger compliance with the "Fasten Seat Belt" sign, when lighted, as well as with crewmember instructions to sit and fasten one's seat

1 Generally, materials filed in the FAA Hearing Docket (except for materials filed in security cases) are also available for viewing at http://www.regulations.gov. 14 C.F.R. § 13.210(e)(l).
2 The Administrator's civil penalty decisions, along with indexes ofthe decisions, the rules of practice, and other information, are available onthe Internet at the following address: www.faa.gov/about/office _org/headquarters _offices/age/pol_ adjudication/AGC400/Civil_Penalty/. See 14 C.F.R. § 13.210(e)(2). In addition, Thomson Reuters/West Publishing publishes Federal Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw (FTRANFAA database). For additional information, see the Web site.
3 A copy ofthe ALJ's written initial decision, served on August 27,2012, is attached.
4 Section 121.317(t) provides "Each passenger required by § 121.311(b) to occupy a seat .. . shall fasten his or her safety belt about him orher and keep it fastened while the "Fasten Seat Belt" sign is lighted."
5 Section 121.317(k) provides that "Each passenger shall comply with instructions given him or her by a crewmember regarding compliance with paragraphs (f)
... ofthis section."
6 Section 121.580 provides "No person may assault, threaten, intimidate, or interfere with a crewmember inthe perfonnance ofthe crewmember's duties aboard an aircraft being operated under this part."belt whenthe sign is on. Section 121.580, among other things, prohibits passenger interference withthe performance ofa crewmember's duties onboard an aircraft. The ALJ held that Wallaesaviolated these regulations during the last hour ofthe flight by leaving his seat and approaching the front ofthe aircraft while the "Fasten Seat Belt" sign was lighted, andby refusing to comply with the crew's instructions to sit and keep his seat belt fastened. (Initial Decision at 4 -7.) The ALJ assessed a $3,300 civil penalty.' Wallaesa's arguments on appeal include the following: 

### (1) 49 U.S.C. § 46301(a)(5)(A) does not authorize the FAA to assess a civil penalty against a passenger; (2) Complainant improperly relied upon the sanction guidance in

### FAA Compliance andEnforcement Program, FAA OrderNo. 2150.3B; (3) the ALJ's finding that he violated 14 C.F.R. §§ 121.317(f) and (k) shouldbe reversed because the FAA did not allege that he violated those regulations inthe Notice ofProposed Civil Penalty (NPCP); (4) the evidence does not support the fmding ofa violation of 14 C.F.R. 

### § 121.580; and (5) he should notbe held accountable for his behavior because he was having a medical emergency. Based on these arguments, Wallaesa contends that
no civil penalty should have been imposed.8 Wallaesa's appeal is denied. The preponderance ofthe evidence supports the ALJ's determination that Wallaesaviolated 14 C.F.R. 

### § 121.580. Further, under 49 U.S.C. 

### § 46301(a)(5), a passenger is subject to a civil penalty for violating regulations, including the regulations involved inthis case, issuedunder 49 U.S.C. 

### § 44701. Wallaesahad ample notice

7 Complainant sought a $5,500 civil penalty. Complainant did not appeal from the imposition of a lower civil penalty than it sought in the Complaint.
8 Wallaesa also argues that that the FAA attorneys attempted to intimidate him into paying the $5,500 civil penalty by amending the Notice ofProposed Civil Penalty (NPCP) and by filing a motion for a protective order. There is no support in the record to substantiate such accusations. Any arguments raised by Wallaesa in his appeal briefbut not specifically addressed in this decision have been considered, deemed not worthy ofdiscussion, and rejected. 2that the FAA was alleging that he had violated 14 C.F.R. §§ 121.317(1) and (k). Finally, Wallaesafailed to prove that he had a medical emergency that causedhim to lose control ofhis actions onthat flight. 

### I. History ofthe Case Complainant alleged in the Complaintthat onNovember 6, 2009, crewmembers on board SouthwestAirlines Flight 3049 asked Wallaesa, a passenger, to take his seat when the "Fasten Seat Belt sign" was illuminated, but Wallaesarefused. Complainant alleged that Wallaesa's refusal to comply with the crewmember's instructions to sit interfered with the performance of the crewmembers' duties. Complainant sought a $5,500 civil penalty under the authority of 49 U.S.C. 

### § 4630l(a)(5) for the alleged violations of 14 C.F.R. 

### §§ 121.317(1), 121.317(k), and 121.580. At a prehearing conference, the ALI pointed out that Complainanthad not alleged specifically inthe Complaintthat Wallaesafailed 

### tofasten his seatbelt whenthe "Fasten Seat Belt" was on. Complainant argued that an allegation that Wallaesa did not fasten his seatbelt when the "Fasten Seat Belt" sign was illuminated was implicit inthe allegation inthe Complaint that Wallaesa did not obey the crewmembers' instructions 

### to take his seatwhen the "Fasten Seat Belt" sign was illuminated. 9 The ALI subsequently deemedthe Complaint as amended to allege that Wallaesa also failed to put onhis seat belt when the "Fasten Seat Belt" sign was on, contrary to the crewmembers' instructions. (3/2/2012 Prehearing Conf. 10 Tr. 5.)

9 The ALJ did not agree with Complainant.
10 Prehearing conferences were held on October 18,2011, March 2, 2012, and March 16,2012. Citations to the prehearing conferences will be as follows: 10/18/2011 Prehearing Conf. Tr. _; 3/2/2012 Prehearing Conf. Tr.
__;and 3/16/2012 Prehearing Conf. Tr. _. 3Inhis Answer, filed on September 17, 2010, Wallaesa alleged that he requested assistance from the crewmembers and that his request did not interfere with the crewmembers' performance oftheir duties. The ALI later deemed the Answer as amended to include that Wallaesa: (1) admitted that he was asked to take his seat several times; (2) lacked knowledge regarding whether the "Fasten Seat Belt" sign was lighted; and (3) denied the allegationthathe had refused to take his seat." (3/2/2012 Prehearing Conf. Tr. 5.) A hearing was held onMay 22, 2012. 12 Complainant introduced several exhibits including the deposition testimony ofanother passenger, Jaime Tomchik (Exhibits C- 2 and C-3) and a document written by Wallaesa onNovember 15,2010. In addition, two flight attendants who served on Flight 3049, Wendy Moorman and Robert Dumond, as well as FBI Agent James Mollica, who was a passenger onthat flight, and FAA Aviation Safety Inspector William Driscoll testified for Complainant. Wallaesa testified onhis ownbehalfand introduced a copy of
a statementhandwritten by Tomchik onNovember 6, 2009. 

### II. The Facts OnNovember 6, 2009, Brian Wallaesa was a passenger onboard a Boeing 737-700 series aircraft operated under 14 C.F.R. Part 121 as Southwest Airlines Flight 3049 from Baltimore, Maryland, to Las Vegas, Nevada. While waiting on the boarding line, Wallaesa met Jaime

11 During the prehearing telephone conference held on October 18, 20II, Wallaesa stated that he had been asked to take his seat several times. He said that he did not know ifthe seatbelt sign was lit, and he denied that he had refused to take his seat. (1 0/18/11 Prehearing Conf. Tr. 50-51.) Wallaesa also admitted that during the passenger briefing prior to takeoff, passengers were advised ofthe regulations requiring them to comply with crewmember instructions. (1 0/18/11 Prehearing Conf. Tr. 49). The ALJ ruled during the March 2, 2012, prehearing telephone conference that "we will take his answer as submitted and supplemented in the previous pre-hearing responses." (3/2/12 Prehearing Conf. Tr. 5.)
12 Citations to the hearing transcript will be Tr.
. 4Tomchik. (Tr. 134; Exhibit C-2 at 8.) Wallaesa traded places with a passenger onthe flight so that he could sit inthe middle seat in Row 3, next to Tomchik, who was sitting inthe aisle seat. Wallaesa continued to talkto Tomchik during the flight. At one point, Wallaesa tapped her shoulder and asked ifhe couldhold her. 13 She replied "no." About 45 minutes into the flight, Tomchik exchanged seats with a passenger in Row 2 on the other side ofthe aisle. (Exhibit R-1 at 65; Tr. 18, 24.) Tomchik explained to Moorman, the flight attendant working in the "A" position (the front third ofthe aircraft) that she had changed her seatbecause Wallaesa had beenmaking her feel uncomfortable. (Tr. 18, 59, 69; Exhibit C-2 at 15.Y4 Moorman asked Wallaesa to go to the back ofthe aircraft to talk with the other flight attendants andher. (Tr. 29, 70.) Wallaesa told them several times that he loved Tomchik, that she was "the one for me," and that he wanted to talk to her. (Tr. 29. 71.) Moorman told Wallaesa that Tomchik did not wantto talk to him, that he needed to leave her alone, and that he shouldreturn to his seat and stay seated. (Tr. 32, 71.) Wallaesa requested that Moorman ask Tomchik again whether he could talk to her, and returned to his seat in Row 3. (Tr. 32-35.) In response to Wallaesa's request, Moorman asked Tomchik ifWallaesacould talk to her, and Tomchik said that she did not wantto talk to Wallaesa anymore. Moorman told Wallaesa that Tomchikhad said again that she did not want to talkto him. (Tr. 34-35.) About 5 to 10 minutes later, Wallaesa went to Row 2 and tried to talk to Tomchik. (Tr. 33-34, 35, 36, 73; Exhibit C-2 at 18.) Tomchik told him to "get away." (Exhibit C-2 at 18.) Moorman instructed Wallaesathat he needed to come to the back ofthe aircraft with her.

13 Wallaesa said to Tomchik, "Please allow me the pleasure ofholding something beautiful today." (Tr. 141; Exhibit C-4 at 3; Exhibit R-1 at 64.)
14 Moorman gave Tomchick apad ofpaper and asked her to write down what had occurred. Tomchik's written statement was introduced as Exhibit R-1. 5(Tr. 36.) The three flight attendants again spoke to Wallaesa. (Tr. 38.) Moorman reseated Wallaesain Seat 18C. (Tr. 39-40, 75.) Later, Wallaesa got up and told Dumondthat he wanted to go up front and talk to Moorman. Dumond said that he would ask Moorman to come back andtalk to him and that Wallaesa should stay seated. (Tr. 76.) Dumondtold Moormanthat Wallaesa wanted to talk to her, and Moorman said that she was busy and would go back when she could. (Tr. 76.) Shortly afterwards, Wallaesa got up to use the rear lavatory. Instead ofreturning to his seat, Wallaesa walked pastRow 18, heading up front. Dumond stopped him and told him to take his seat. Wallaesa returned to his seat in Row 18. (Tr. 78.) About an hour outside ofLas Vegas, the captainturned onthe "Fasten Seat Belt" sign and informed the flight attendants that he wanted them to sit down and wear their seat belts because he expected the flight to experience turbulence. (Tr. 40-41, 79, 98.) Not long afterwards, while the "Fasten Seat Belt" sign was lit, Wallaesa stood up and walked quickly toward the front ofthe airplane. 15 (Tr. 41-42, 79-80.) Dumond, who was seated withhis seat belt fastened, got up and followed Wallaesa. (Tr. 79-80.) Moorman, who was seated in the frontjump seat, observed Wallaesa coming to the front ofthe aircraft with Dumond behind him. (Tr. 42.) The two flight attendants stopped Wallaesabefore he reached the front and asked him to return to his seat. (Tr. 42, 81.) Wallaesa refused. (Tr. 42, 80-81.) The "Fasten Seat Belt" sign was illuminated at that time. (Tr. 42.) They brought Wallaesa to the front galley, and talked to him for a while. Whenthey asked him to go backto his seat and sit down, he refused. (Tr. 43.)

15 Complainant argues, and the ALJ found, that Wallaesa's conduct in violation ofthe regulations began at this point in the flight. 6

### Moorman called the captain and explained that Wallaesa was not complying withtheir instructions to sit down, that the flight attendants were not in their seats, and that they needed help. The captain told Moorman to ask the FBI agent, James Mollica, who happened to be a passenger on the flight, to intervene. (Tr. 43.) As Dumond explained, "at this point, we had a security situation, and one ofthe things that we are trained to do is to protect the cockpit. And, the area ofthe front galley is
... a clear zone, ..., and it is ourjob to protect that area so that no one can reach the cockpit door." (Tr. 84.) Dumond stood in front ofthe cockpit door, facing the cabin. (Tr. 83.) Mollica came up front, identified himselfas "Agent Mollica" and tried to calm Wallaesa down. (Tr. 45-47,108-109, 110.) Mollica asked Wallaesaseveral times to sit down withhim, and Wallaesareplied each time that he did not want to sit down. (Tr. 85.) Wallaesa replied to Mollica several times that he wanted to talk to Tomchik. (Tr. 47, 108.) Meanwhile, Moormanre-seated Tomchik, because she believed that the situation was "escalating" and that moving Tomchik to the rear ofthe aircraft was necessary to protect Tomchik's safety. (Tr. 46.) At this point inthe flight, Mollica explained that he would have to handcuffWallaesa if Wallaesa did not sit down. (Tr. 48, 85-86, 108-109.) Wallaesa stated that he did not care and wanted to talk to Tomchik. (Tr. 109.) Mollica testified that Wallaesa "had wide eyes, and he
was kind ofsweating a little bit. And,
... ifI had to describe it, I would say he was ... in attack mode, and
... was ready to do something
... stupid." (Tr. 111.) Mollica handcuffed him. (Tr. 48.) The flight attendants reseated the passengers who had been sitting inRow 3 so that Mollica and Wallaesa could sit in that row together. (Tr. 49, 86, 111.) Mollica and Wallaesa

7started to walk from the front ofthe aircraft toward those seats. Then Wallaesa yelled that he wantedto say something to everyone on the aircraft. (Tr. 112.) Mollica grabbed Wallaesa and pulled him back to the front ofthe aircraft. (Tr. 112-113.) Wallaesa insisted several times that he would not sit down until he had had a chance to speak on the public address system. (Tr. 113.) Mollica told him several times that he would not be allowed to use the public address system, and that he needed to be quiet. (Tr. 113.) After about 5 minutes, Wallaesa became calm and agreed to comply. Mollicatook him toward Row 3 but Wallaesa did not sit down. (Tr. 116.) Mollicaphysically forced Wallaesato lie down across the seats in Row 3. (Tr. 87-88, 113, 115-116.) Later, Wallaesa indicated that he wanted to sit up, and Mollica allowed himto sit inthe window seat, while Mollica sat in the middle seat. Dumond estimated that Mollicafinally got Wallaesa seated about 25 to 30 minutes out from Las Vegas. (Tr. 98.) The "Fasten Seat Belt" sign remained illuminated until the end ofthe flight. (Tr. 54, 88- 89, 101.) TSA and FBI personnel, local law enforcement, Las Vegas police, and Southwest supervisors metthe aircraft upon arrival. (Tr. 51, 89.) Wallaesatestified that he did notknow whether the "Fasten Seat Belt" sign was on when he wentup front from Row 18. (Tr. 142.) He argued that when he got up to talk to Moorman, he "was seeking help from the person in charge," and that it was appropriate for him to get outof his seat, even ifthe "Fasten Seat Belt" sign was onbecause he was "in a panic." (Tr. 144.) His panic, he argued, constituted a "medical emergency." (Tr. 144, 148.) He testified that he had taken medication for anxiety and depression for about 1

### Yi years prior to this flight. (Tr. 145.) In Complainant's post-hearing brief, Complainant argued that Wallaesa violated 14 C.F.R. §§ 121.317(f) and (k) and 121.580 starting about 45 minutes out ofLas Vegas when Wallaesa refused to comply with the flight attendants' instructions to return to his seat and fasten

8his seat belt despite the fact that captainhad turned on the "Fasten Seat Belt" sign. Complainant explained that it was not alleging that Wallaesa violatedthese regulations earlier in the flight. (Complainant's Post-Hearing Briefat 9.) According to Complainant, Wallaesa's conductprior to the illumination ofthe "Fasten Seat Belt" sign "is relevant only to establishing the motive for his [Wallaesa's] noncompliance during the fmal45 minutes, the escalating nature ofhis conduct andthathe bothunderstood and was capable ofcomplying with crewmember instructions but chose to disregard the crew's instructions
...." (Complainant's Post-Hearing Briefat 9.) 

### III. The Initial Decision The ALJ explained that 14 C.P.R. §§ 121.317(f)( and (k) "protectthe safety ofthe crew and passengers and that [a] penalty maybe assessed even ifa passenger has good reasonto stand while the 'Fasten Seat Belt' sign is illuminated." (Initial Decision at 4.) He held that Wallaesa violated those regulations "byleaving his seat and approaching the front ofthe aircraft while the 'Fasten SeatBelt' sign was illuminated." He noted that Wallaesa had not provided any evidence to substantiate his argument that he was experiencing a medical emergency, and that his contention that he needed to speak with Moorman did "notjustifY the risk he posed to the order and safety ofthe cabin." (Initial Decision at 5.) The ALJ wrote: Wallaesainterfered with crewmember duties by standing after the pilot turned on the "Fasten Seat Belt" sign and refusing to sit when asked. Respondent prevented the crew from completing their duties, forced the crew to stand while the plane was in turbulent air, placingthe crew and passengers at risk, and preventedthe crew from accessing the entire plane byblocking the aisle. Ifanother passenger had an emergency, the crew might have been unable to reach them. Respondent also distracted the crew by forcing them to call a law enforcement officer to subdue him.

9(Initial Decision at 6.) The ALJ explained that he did notbase his findings ofviolations upon Wallaesa's interactions withTomchik orwith the flight attendants prior to the turning on of "Fasten Seat Belt" during the last hour ofthe flight. (Initial Decision at 3, n. 14.) The ALJ assessed a $3,300 civil penalty for Wallaesa's violation of14 C.F.R. § 121.580 based upon his analysis ofdecisions in previous cases involving passenger interference. (Initial Decision at 8-9.) He did not assess a separate penalty for the violations of 14 C.F.R. §§ 121.317(t) and (k). 

### IV. The Appeal 1. Wallaesa argues that as a passenger, he was notliable for a civil penalty under 49 U.S.C. § 46301(a)(5). He contends that the sanction authority in49 U.S.C.§ 46301(a)(5) for violations ofregulations issued under specified provisions ofthe Federal aviation statute (including Chapter 447) only applies to "Airports, Airlines, the employees ofsaid entities, the contractors ofsaid entities and the employees and contractors ofthe FAA andDepartment of Transportation that oversee said entities." (Appeal Briefat 6.) Wallaesamisreads the statute. Section 4630l(a)(5)(A) ofU.S. Code Title 49 provides: "An individual (except an airman serving as an airman) or a small business concern is liable to the Government for a civil penalty ofnot more than $10,000 for violating
...(i) 

### chapter
... 447 [49 U.S.C. §§ 44701- 44728] (except sections 44717-44723)
... or (ii) a regulation prescribed or order issued under any provision to which clause (i) applies." 49 U.S.C. 

### § 46301(a)(5)(A)(i)- (ii) (emphasis added.) (The $10,000 maximumpenalty has been increased for inflation to $11,000 by 14 C.F.R. 

### § 13.305.) Inparticular, 49 U.S.C. § 44701 requires the Administrator "to promote safe flight ofcivil aircraft in air commerce by prescribing
... regulations and minimum

10standards for otherpractices, methods, and procedures the Administrator finds necessary for safety in air commerce and national security." The word "individual" in Section 4630l(a)(5)(A) includes passengers. The FAA has interpreted Chapter 447--and its predecessor, Chapter 601 in the Federal Aviation Act of 1958,
as amended

-- as authorizing the regulation ofpassenger conduct in the interest ofsafety of flight. For example, Administrator N.E. Halaby explained in 1961, in the preamble to SR448, 16 that "recenthijackings ofair carrier aircraft have highlighted a necessity to provide additional controls over the conduct ofpassengers in order to avoid a serious threat to the safety offlights and persons aboardthem." 29 Fed. Reg. 7009 (August 4, 1961). When the FAA issued 14 C.F.R. 

### § 121.580 in 1999, itreiterated in tbe preamble that certainregulations, including existing rules prohibiting interference with crewmembers (i.e. 14 C.F.R. 

### § 91.11) apply to passengers onboard aircraft. 64 Fed. Reg. 1076, 1077-1078 (January 7, 1999.) Section 121.580
was prescribedunder the authority givento the Administrator under Chapter 447 ofTitle 49.

16 SR 448 provided in pertinent part: "No person shall assault, threaten, intimidate, or interfere with a crewmember in the performance ofhis duties aboard an aircraft being operated in air transportation[.]" 26 Fed. Reg 17009 (August 4, 1961). SR 448 was adopted under the authority ofSections 313 and 601 ofthe Federal Aviation Act of 1958. Section 601 ofthe Federal Aviation Act of 1958 provided, "The Administrator is empowered and it shall be his duty to promote safety offlight ofcivil aircraft in air commerce by prescribing and revising from time to time
... [ s]uch reasonable rules and regulations, or minimum standards, governing other practices, methods, and procedures, as the Administration may find necessary to provide adequately for national security and safety in air commerce." 49 U.S.C. App. § 142l(a)(6). The Federal Aviation Act of 1958 was included in the Appendix ofTitle 49 U.S. Code, until it was codified in Title 49 ofthe U.S. Code as a result ofthe enactment ofPublic Law 103-272 (July 5, 1994), 108 Stat. 745. The codification was not intended to have any substantive effect on the existing law. (!d.) Inparticular, Section 601 ofthe Act was incorporated in the U.S. Code as 49 U.S.C. § 44701. The U.S. Court ofAppeals for the Fifth Circuit recognized that49 U.S.C. App. § 1421(a)(6) provided the FAA with the statutory authority to issue 14 C.F.R. § 91.8(a)(l984)(today's § 91.11 ), a regulation prohibiting any person from assaulting, threatening, intimidating or interfering with the performance ofduties ofa crewmember aboard an aircraft being operated. US. v. Kilpatrick, 759 F.2d 1250, 1251 (5th Cir. 1985). 1164 Fed. Reg. at 1079. Hence, Wallaesa's argument that he is not subject to a civil penalty under 49 U.S.C. § 46301(a)(5)(A) for violating 14 C.P.R.§ 121.580 is rejected. Likewise, when the FAA issued regulations pertaining to the use ofseat belts by passengers, and requiring passengers to comply with instructions to fasten seat belts, its goal was to increase passenger and crewmember safety onboard aircraft. These regulations were issued under Section 601 ofthe Federal Aviation Act of 1958, as amended, which is the predecessor to today's 49 U.S.C. § 44701. (55 Fed. Reg. 7414 (March 1, 1990); 57 Fed. Reg. 42662,42665, 42672 (September 15, 1992)). Hence, passengers who violate 14 C.P.R. § 121.317's provisions regarding compliance withthe "Fasten Seat Belt" sign are subject to civil penalties under 49 U.S.C. § 46301(a)(5). 2. Wallaesa argues that Complainant based its allegation that a $5,500 civil penalty would be an appropriate civil penalty upon guidance contained in FAA Order No. 2150.3B, which is mentioned inneither the procedural rules governing FAA civil penalty hearings (14 C.P.R. § 13.16 and 14 C.P.R. Part 13, subpart G), nor 49 U.S.C. § 46301(a)(5)(A). Consequently, he argues, "FAA Order 2150.3B has no basis in U.S. code, and therefore, any presumptions, arguments or positions based onFAA Order No. 2150.3B are invalid, and therefore, any argument made bythe Complainantusing the StaffManual as a basis is an invalid statement[.]" (Appeal Briefat 5.) Preliminarily, the ALJ did not base the $3,300 civil penalty that he imposed upon FAA Order No. 2150.3B. Instead, he assessed a $3,300 civil penalty based upon his analysis of sanctions imposed in past cases involving similar violations. Further, FAA Order No. 2150.3B is a staffmanual designed to provide guidance to FAA enforcement personnel in the exercise oftheir discretion in handling compliance and

12

### enforcement matters. (FAA OrderNo. 2150.3B at 1-1.) The sanction guidance contained in Chapter 7 and Appendix B ofthat Order is based upon the FAA's statutory authority, including,
as applicable, 49 U.S.C. 

### § 4630l(a)(5)(A). The Order contains guidance for FAA personnel regarding "the general policy the FAA intends to apply in selecting the types ofsanction, ranges ofsanction within those types, and specific sanction amounts to impose in legal enforcement actions for typical violations ofthe FAA's statute and regulations." (FAA Order No. 2150.3B at 7-1.) Where 49 U.S.C. 

### § 4630l(a)(5), as adjusted for inflation under 14 C.P.R.§ 13.305(d), specifies the maximum civil penaltythat may be assessed against an individual or small business for a violation ofcertain chapters ofthe Federal aviation statute orregulations issued thereunder, the Order provides guidance regarding whether the maximum or a lesser penalty would be appropriate for particular types ofviolations, taking the nature ofthe violation and other factors into consideration. (FAA Order No. 2150.3B at 7-9 through 7-10; Appendix B, Figure B-3.) Specifically, the sanction guidance inAppendix B sets forth the recommended sanction ranges for different types of violations. FAA Order No. 2150.3B specifies that it is the Administrator's policy that for an individual not serving as an airman, a maximumrange civil penalty- between $4,400 to $11,000- is appropriate for violations involving interference with a crewmember (e.g., 14 C.P.R. 

### § 121.580). (FAA OrderNo. 2150.3B at B-8 and B-28 (Figure B-3-p.)Y' The $3,300 civil penalty assessed by the ALJ was below the recommended range for a violation of 14 C.P.R. § 

### 121.580.

17 

### Under the guidance set forth in FAA 

### Order No. 2150.3B, 

### a minimum to moderate range civil penalty- between $550 

### and $4,399 

### -is appropriate for a passenger who fails to fasten his seat belt while the seat belt sign is on. (FAA 

### Order No. 2150.3B 

### at B-8 

### and B-29 

### (Figure B-3-q.)) 

### 133. Wallaesa argues that the allegation that he violated 14 C.P.R. 

### § 121.580 was "the only applicable charge," because the FAA only charged him with a violation ofSection 121.580 in the Notice ofProposed Civil Penalty (NPCP). (Appeal Briefat 9.) However, by letter dated April 7, 2010 (before the informal conference was held), the Regional Counsel for the Western-Pacific Region notified Wallaesa that "two violations were inadvertently omitted from the Notice of Proposed Civil Penalty." The Regional Counsel issued an Amended Notice ofProposed Civil Penalty (ANPCP), alleging that Wallaesa also violated 14 C.P.R. 

### §§ 121.317(f) and 121.317(k). The ANPCP did not include any additional factual allegations, andthe FAA proposed a $5,5000 civil penalty, as inthe NPCP. The FAA later issued a Final Notice ofProposed Civil Penalty and a Complaint, both ofwhich alleged the same facts and violations as the ANPCP, and proposed a $5,500 civil penalty. Hence, Wallaesa had adequate notice regarding the allegations that he violated 14 C.P.R.§§ 121.317(f) and (k). 4. Wallaesa argues thatthe preponderance ofthe evidence does not support the finding that he violated 14 C.P.R.§ 12!.580. Wallaesa points to evidence that: 

### (I) there are no assigned seats on Southwest flights, andtherefore, he could switch seats to sit next to Tomchik whenhe got onthe flight; (2) he did not contact Tomchik when he walked to the front ofthe aircraft (whenthe "Fasten Seat Belt" sign was lighted); and (3) he did not threaten the flight attendants." Section 121.580 prohibits interference with the performance ofthe duties ofa crewmember. Crewmember is defined as "aperson assigned to perform duty in an aircraft

18 In his appeal brief, Wallaesa wrote that Mollica testified that Wallaesa's interactions with the flight crew and passengers were normal for a Southwest Airlines flight and therefore could not constitute a violation ofSection 121.580. Wallaesa did not include a transcript citation for this alleged testimony. While it may not have been unusual for someone to ask to switch seats with another passenger on a Southwest Airlines flight, it certainly is not normal behavior on any flight for a passenger to refuse repeatedly to sit down (and fasten his seat belt), contrary to instructions ofthe pilot (the lighted Fasten Seat Belt sign), the flight attendants, and a law enforcement officer who was asked by the flight attendants for assistance. 14during flight time." 14 C.F.R. 

### 1.1 ("crewmember.") Flight attendants who are assigned to work
on a flight, such as Moorman and Dumond, are crewmembers as that term is defined in 14 C.F.R. 

### § 1.1. 

### Evgeniy lgnatov, FAA OrderNo. 1996-6 at 11-12 (February 13, 1996). Likewise, the pilots flying the aircraft were crewmembers 19 under this definition. 20 In

### Michael Bengry, FAA Order No. 2003-9 (September 12, 2003), the Administrator affirmed the ALJ's finding that Bengry violated 14 C.F.R. 

### § 91.11, in part, by interfering with the flight attendant's performance ofher duties. The Administrator wrote: While it was indeed the chiefflight attendant's duty to handle disturbances caused by passengers, Bengry still interfered with her duties at her assigned duty station. The disturbance Bengry caused was unnecessary and willful, unlike other unavoidable or accidental problems aboard flights. Whenthe chiefflight attendant was inthe back dealing with Bengry, she was unable to handle routine duties and emergencies at her assigned duty station. 

### Michael Bengry, FAA OrderNo. 2003-9 at 7. There was ample evidence that Wallaesa failed to comply with the instructions ofthe crewmembers to sit down when the "Fasten Seat Belt" sign was lighted during the last 45 minutes ofthe flight and interfered withthe performance oftheir duties. The evidence established that the captain turned onthe "Fasten Seat Belt" sign when the aircraft was about an hour outside ofLas Vegas, and that not long afterwards, Wallaesawalked toward the front ofthe aircraft from his seat in Row 18. Flight Attendants Moorman and Dumond, who were required to sit withtheir seatbelts fastened due to the captain's instructions, got up and asked Wallaesa to return to his seat. Wallaesarefused. They spent time talking to him inthe front galley, trying to

19 A pilot may also be a "flight crewmember," ifhe is assigned to duty on aflight. The term "flight crewmember" is defined as "apilot, flight engineer, or flight navigator assigned to duty in an aircraft during flight time." 14 C.F.R. § 1.1 ("flight crewmember.)
2

## °Complainant does not argue, and the ALJ did not find, that Agent Mollica was a crewmember when he assisted the flight attendants. It is not necessary to determine as part ofthis appeal whether Mollica was a crewmember because the evidence clearly establishes that Wallaesa's conduct interfered with the performance ofthe duties ofthe flight attendants and the pilots. 

### 15

### persuade him to sit down and fasten his seat belt. Dumond regarded this as a "security situation" and stood in front ofthe cockpit door, facing the cabin, so as to protect the cockpit. The flight attendants felt that itwas necessary to inform the captain about Wallaesa's noncompliance. While FBI Agent Mollica dealt with Wallaesa, Moorman, concerned about Tomchik's safety, resealed her from Row 2 to Row 18, and resealed passengers in Row 3 so that Agent Mollica and Wallaesa could sit inthat rowtogether. Wallaesa's behavior made it necessary for the flight attendants to focus their attention on him. Both ofthe flight attendants should have been seated in their assigned sections ofthe aircraft and monitoring the passengers in their assigned sections from their seats. Because Wallaesa diverted their attention, they were not ready to attend to the needs ofthe other passengers in their assigned sections. It

### was the responsibility ofthe flight attendants to obey the instructions ofthe pilot as well as to maintain a calm, safe and orderly environment aboard the aircraft.'' Evgeniy Ignatov, 

### FAA OrderNo. 1996-6 at 10. Under these circumstances, Wallaesa interfered withthe flight attendants in the performance oftheirprimary duty, as the ALJ explained, "to ensure safe and secure travel, which demands that the crew can always assure a safe environment and retain control ofthe cabin. A crew cannot appropriately fulfill these duties ifa passenger improperly distracts or overburdens their attentions."22 

### (Initial Decision at 5-6.)

21 As explained by Judge Kolka in the initial decision in Ignatov, "the flight attendants
... are responsible essentially for
...[ e]verybody in that tube ofmetal that is hurtling through the air. Their primary responsibility
... is the safety ofthose person[s] encased in that metal capsule and for that reason, what they say, has to go... for the simple reason that law and order in an enclosed capsule at 

### 30,000 feet justhas to be maintained." (Evgeniy Ignatov, Docket No. 

### CP94GL0076, at Tr. 

### 115-116.)
22 InDavidStout, 

### FAA Order No. 

### 1998-12 at 

### 8 (June 

### 16, 1998), the ALJ held that the passenger who failed to fasten his seat belt despite repeated requests by the flight attendants interfered with the perfonnance ofthe flight attendants duties including "retaining control as a crewmember and assuring a safe and orderly environment." 

### 165. Wallaesa argues thatthere are instances, such as a medical emergency/' in which a passenger's interference withthe performance ofa flight crewmember's duties or a passenger's getting out ofhis or her seat when the Fasten Seat Belt sign is lighted may be excusable." Wallaesa's argument that he was having a medical emergency that excused his conduct
onthe flight constitutes an affirmative defense. "Aparty who asserts an affirmative defense has the burden ofproving the affirmative defense." 14 C.F.R. 

### § 13.224(c). The preponderance of the evidence inthis case does not show that the disturbance caused by Wallaesa was beyondhis control and therefore, excuses his undue interference with the crewmembers. His self-diagnosis ofa "panic" was not substantiated by any evidence from a medical professional. The only evidence that Wallaesa had any mental health condition was his testimony that he had been taking Paxil for anxiety and depression for about 1 Y, years at the time ofthe flight. 25 (Tr. 145.) Moorman, Dumond, and Mollicatestified that at no point did Wallaesa tell themthat he was on medication orthat he needed medical assistance. (Tr. 52, 91, 111.) Dumondtestified that he did not consider Wallaesa's lack offocus onthe instructions that the crew gave him to be a medical condition. (Tr. 93.) It appeared to Dumond that Wallaesa did not want to comply with the instructions to sit and thathe became agitated because he was not getting what he wanted. (Tr. 85.) The evidence showedthat Wallaesa had been able to obey instructions and sit quietly

23 There was testimony about flight attendauts having to spend time attending to passengers who had had heart attacks or who needed to be moved several times during a flight because ofconcern that they would have, or were having, allergic reactions to perfumes and deodorizers on the flight.
24 He wrote that in his opinion, excusable emergencies should be listed in the regulations, aud that he "has an extremely detailed proposition prepared for the FAA as to how this should be executed; this consultation is not free however." (Appeal Briefat 15.)
25 Wallaesa testified that he had had a complimentary alcoholic beverage after boarding the aircraft (Tr. 134), but Moorman testified that she did not recall any complimentary alcoholic beverage serviCe. (Tr. 59.) There was no evidence about the effects ofalcohol consumption on aperson taking Paxil. 17and patiently during other times during the flight. Hence, the evidence does not support a finding that Wallaesa's behavior onboardthe flight should be excused. 

### V. Conclusion Inlight ofthe foregoing, Wallaesa's appeal is denied. A $3,300 civil penalty is assessed.06

M HAELP. HUERTA ADMINISTRATOR Federal AviationAdministration

26 This order shall be considered an order assessing civil penaltyunless Respondent files a petition for review within 60 days ofservice ofthis decision with the U.S. Court ofAppeals for the District ofColumbia Circuit or the U.S. court ofappeals for the circuit in which the respondent resides or has its principal place ofbusiness. 14 C.P.R.§§ 13.16(d)(4), 13.2330)(2), 13.235 (2009). See 71 Fed. Reg. 70460 (December 5, 2006) (regarding petitions for review offinal agency decisions in civil penalty cases). 18SERVED: AUGUST 27, 2012 U.S. DEPARTMENT OF TRANSPORTATION OFFICEOFHEARINGS 

# R·.Ec·EtVE.D

WASHINGTON, DC
IN THE MATTER OF BRIAN WALLAESA FAADOCKETNO. CP10WP0010 (Civil Penalty Action) FDMS NO. FAA-2010-0628 

## AUG 2 82012 

# HEARING DOCKET

INITIAL DECISION OF THE CIDEFADMINISTRATIVE LAW JUDGE STATEMENT OF PROCEEDING This proceeding arises from a complaint issued July 28,2010, by the Federal Aviation Administration's Assistant ChiefCounsel, Enforcement Division (Complainant), to Mr. Brian Wallaesa (Respondent), alleging that during Southwest Airlines flight 3049 from Baltimore, Maryland, to Las Vegas, Nevada, onNovember 6, 2009, whenthe seatbelt signwas illuminated, Respondent was asked several times by crewmembers to take his seat, butrefused, artd that Respondent's conduct interfered with the performance ofthe crewmembers' duties. Complainantstates that Respondent thereby violated 14 C.F.R. §§ 121.317(f)/ 121.317(k),2 and 121.580.3 Complainant seeks a $5,500 penalty for the section 121.580 interference claim and seeks no penalty for the section 121.317 safety beltviolations; but Complainant argues thatthe safety beltviolations shouldbe considered as part ofthe "totality ofthe circumstances" in setting**a~~-4** . .

1 "Each passengerrequired by § 121.31l(b)to occupy a seat orberth shall fasten his orher safety belt about him or her and keep it fastened while the 'Fasten Seat Belt' sign is lighted." 14 C.P.R. § 121.317(£) (2009). 2 "Eachpassenger shall comply with instructions givenhim orherby a crewmember regarding compliance with paragraph[] (f)
... ofthis section." 14 C.P.R.§ 121.317(k) (2009). 3 "No person may assault, threaten, intimidate, or interfere with acrewmember in the performance ofthe crewmernber's duties aboard an aircraftbeing operated underthis part."' 14 C.P.R. § 121.580 (2009). 4 Compl'tPost-Hearing Br. 19. Complainant's Notice ofProposed Civil Penalty only chargedRespondent with violating 14 C.P.R.§ 121.580 (Memorandum on Sanction (Nov. 15, 2011), at 1) and sought a civil penalty of $5,500. Complainant's Amended Notice charged Respondent with violating 14 C.P.R. §§ 121.317(£) and (k) but did not raise the proposed civilpenalty. Id. Complainant states that the "$5,500 penalty proposed in the original Notice was based onRespondent's alleged violation of 14 C.P.R. § 121.580" (ill) and that "the civilpenalty proposed in the Amended Notice and the Complaintwas not increased as a result ofthe additional allegations ofviolations of 14 C.P.R. §§ 121 .317(£) and (k)." Id. at 8. Complainantbears the burden ofestablishing each violation and demonstrating the appropriateness ofthe proposed civil penalty by a preponderance ofreliable, probative, and substantial evidence. 14 C.P.R. §§ 13.223-24 (2009).Respondent contends that he did notinterfere withthe duties ofthe flight crew,5 that he was 

## '**i\J.e,t~!y** ,s'lefinghelp**fro~J:th9** flight crewto talkto a female passenger,6 and that, whentold that
· he mil.st sit'dovfu;

## he coinplied.7 Atthehearing, Respondent contended thathe washaving a

panic atta,ck andthat "everything wouldhave beenresolved" ifa flight attendant had spoken withhHh. 8 ' > · .

. -- ' . . '

-- ..**~** : .- . . . ··' We

### instt~cted'the piuiies to· attempt to negotiate a settlement,9 but those negotiations failed; 10 and a hearing was held onMay 22,2012. Post-hearing briefs were submittedby Complainant and Respondent on July 2 and July 27,2012, 11 respectively, andthe case is ready for decision. 12 

### FINDINGS AND CONCLUSIONS We find thatRespondent failedto fasten his seatbelt and failed to comply withthe crew's orders to sit down while the "Fasten SeatBelt" sign was lit andtherefore interfered with the crew inthe performance oftheir duties. We conclude that Respondent violated 14 C.F.R. §

### § 121.317 (f) and (k) and 14 C.F.R. 

### § 121.580 andthat $3,300 is the appropriate penalty. 

### FACTS While queuing to board Southwest Airlines flight 3049 from Baltimore, Maryland, to Las Vegas, Nevada, onNovember 6, 2009, Respondent met and struckup a conversationwith Jaime Tomchik (Tr. 134). Once aboard, Respondent satinthe captairt-side third-rowwindowseat and Ms. Tomchik satinthat row's aisle seat (Compl'tEx. 2 (Tomchile Deposition), at 9-10; Resp't Ex. 1 (TomchikNote); see Tr. 30-31). Respondent thentradedplaces with a passenger inthe middle seatto continue his conversation with Ms. Tomchik (Compl'tEx. 2, at 10; Resp'tEx. 1). Priorto departure theflight crew gave the normal preflight irtstructions, includirtg instructions on the safetybeltrequirements (Tr. 52). Respondent's conversation with Ms. Tomclllk lasted, on and off, through the first forty-five minutes ofthe flight (Compl'tEx. 2, at 10-15; see Tr. 69). Itwas largely one-sided; heinquired and she parried withpolite attempts to end the conversation (Compl'tEx. 2, at 11-14). Around forty-five minutes into the flight, he asked ifhe couldplace his ann around her and ifshe would

. 5 Resp't Post Hearing Br. 14.

6 Tr. 136. 7 Tr. 147. 8 Tr. 148. 9 Prehearing Conference Transcript (PHC Tr.) (Mar. 2, 2012), at 22.

_10 PHC Tr. (M:ar. 16, 2012), at 14-15.

II Complainant had until August I0, 2012, to reply to Respondent's post-hearing briefbut failed to do so. 12 This decision constitutes the Judge's findings offact and conclusions oflaw, as well as the basis thereof, concerning all material issues offact or law based onthe entire record pursuantto 14 C.F.R. § 13.232(a). References to the record are intendedto indicate relevant testimony and exhibits and do notnecessarily represent all evidence supporting each fmding. All arguments have beenconsidered, whether ornot specifically discussed, and, where not accepted, have been rejected. 

### -2-let him "hcildO something beautifultoday" (Tr. 141). Sherefused and exchanged seats with a gentleman across the aisle inthe secondrow (Compl'tEx. 2, at 14). Ms. Tomchikcalled the front-cabin flight attendant, WendyMoorman, and told herthat she changed seats because Respondentmade heruncomfortable and she did not wantto speakwith Respondent (Tr. 16, 18, 25). Ms. MoormanprovidedMs. Tomchik with a pad and pen, and Ms. Tomchik recorded the incident's details (Tr. 19; Resp'tEx. 1). After speaking to Ms. Tomchik, Ms. Moormanescorted Respondent to the rear ofthe aircraft to tell him whatMs. Tomchik said and to "gethis s.ide ofthe story" (Tr. 19-20, 70). Respondent saidthathe was in love with Ms. Tomchik (Tr. 29) and asked Ms. Moormanto askMs. Tomchik ifshe wouldbewilling to speak withhim (Tr. 34). Ms. Moormantoldhimthat she would ask Ms. Tomchilc, but only ifRespondent agreedto sit down, which he did (Tr. 34-35). After Ms. Tomchikrefused, Ms. Moorman told Respondent thatMs. Tomchikdid not wartt to speakwith him (Tr. 35). Approximately five to ten minutes after Ms. MoormantoldRespondent that Ms. Tomchik did not wantto speakto him, Respondent lefthis seat, entered the aisle, and leaned over a passengerin orderto speak with Ms. Tomchik. 13 Ms. Moormanintervened, telling Respondent thathe "need[ed] to come to the back ofthe aircraft
... now" (Tr. 36), and Ms. Moorman broughtRespondentto the backfor a second time (Tr. 37). After speaking with a "wide-eyed" and "agitated" Respondent (Tr. 39), Ms. Moorman andthe rear flight attendant, Robert Dumond, reseated him intheback ofthe plane and both flight attendants thenreturned to their normal duties (Tr. 68, 75). 14 One hourfrom landing, the pilot litthe "Fasten SeatBelt" sign and instructed thepassengers and crewto remain seated because he expectedturbulence (Tr. 41; 79). During the final approach into Las Vegas, while the seat belt sign was illuminated, Respondent stood again and wallced up the center aisle toward the front (Tr. 41-42; 79-80). Mr. Dumondpursued and grabbed Respo11dent bythe arm, telling himhe must sit down (Tr. 80). Respondent insisted he would not sit down until he spoke to Ms. Moorman (Tr. 81; see Compl'tEx. 2, 30). Mr. Dumondtook Respondentto the front galleyto resolve the situation (Tr. 81). Mr. Dumond stood between Respondent and the cockpit door, because "atthis point [there was] a security situation" (Tr. 83).

13 Tr. 35-36; 73. Althoughboth ofthe flight attendants who testified at the hearing were asked, neither could say whether the "Fasten Seat Belt" sign was illuminated while Respondent was moving aboutthe cabin during tills attempt to speitk with Ms. Tomchik (Tr. 33, 77). 14 The facts surrounding Respondent's interactions with Ms. Tomchik, and with the flight attendants prior to the captain's illuminating the "Fasten Seat Belt" sign, are not directly probative with respect to Complainant's allegations that Respondent failed to fasten his seat belt; butthey are relevant to understanding the circumstances leading to Respondent's later conduct whlle the sign was illuminated. 

### -3-

### Ms. Moorman called the pilot who told herto signal an onboardFBI agent, Special Agent James Mollica, for assistance. 15 

### Special AgentMollica identified himselfto Respondent as "AgentMollica" (Tr. 46-47, l09) and tried to cahnRespondent, butRespondent said thathe wouldnot sit downuntil he could "talkto Jaime" (Tr. l08). Respondent saidthathe loved Ms. Tomchik, thatthe flight crewwas keeping 

### him from her, andthathe neededto use the public address system to explainhis need to speakto Ms. Tomchik (Tr. 49, 113). Special Agent Mollicareminded RespondentthatMollicawas a law enforcement officer (Tr. 110) and stated thathe would "finishthe flight inhandcuffs if [he did not] listen and sitdown" (Tr. 110). Mollicafelt thatRespondent was "inattackmode" and "readyto do something
... stupid" (Tr. 111), so he handcuffed Respondent (Tr. 110). As Special AgentMollica escorted him

### backto his seat, Respondent yelled that he would not sit downuntil he could make a statement over the plane's PA system (Tr. 113). Respondent "bucked"backward againstMollica, requiring Mollicato "forcefullypushhimforward" (Tr. 114). Special AgentMollica statedthathe was readyfor tlns kind ofresistance, butthat "ifitwas anybody else, itmighthave !mockedthem over" (Tr. 115). Uponreachingrow three, Respondentrefusedto sit down (Tr. 50). Agent Mollicaplaced Respondent in an "armbar" (Tr. 116) and "laidhim down into [row three]" (Tr. 88). Once in the row, Respondent told Mollicathat "hewould like to sit up, and
...that he would be good" (Tr. 116). Mollica then seated Respondent inthe window seat (Tr. 50, 88, 117), andhe remained in that seatuntil the flight ended (Tr. 117, 137). Once the plane landedin Las Vegas, FBI agents and Las Vegas police officers, who had beennotifiedbythe captain ofthe flight aboutthe situation onboard (Tr. 51), metthe aircraft to remove Respondent (Tr. 51, 89). DISCUSSION I. Violation of 14 C.F.R. §§ 121.317(f) and (k) We find that Respondent violated 14 C.P.R.§§ 121.317(f) and (k), because he failed to fasten his seatbelt whenthe "Fasten SeatBelt" sign was illuminated andhe failed to follow crewmemberinstructions to'wearhis safety belt. Section 121.317(f) provides that "eachpassenger ... shall fasten his orher safety belt about

.him orher and keep itfastened while the 'Fasten Seat Belt' sign is lighted." Section 12.1.317(k) further provides "eachpassenger shall comply with instructions given him or her by a crewmemberregarding compliance with" the seatbeltrequirement. These provisions protect the safety ofthe crew andpassengers. 16 

### A penalty maybe assessed evenifa passengerhas good reason to stand while the "Fasten Seat Belt" sign is illuminated. 17

15 Tr. 43. Inaccordance withnormal procedure, SpecialAgentMollica identified himselfas a law enforcement officer when he boarded (Tr. 82). Although not assigned to monitor the flight, he was armed aud carrying handcuffs (Tr. 105). 16 SeeDiGenova, FAADocketNo. CP07WP0007, FDMS No. FAA-2007-27919, at 3 (June 25, 2008).

### Although the complaint did not specifically allege that Respondent failed to fasten his seat beltwhile the "Fasten Seat Belt" sign was illuminated,18 

### during a pre-hearing conference we ordered thatthe complaint be deemed amended to include that allegation, 19 

### since Respondent knewthat failure to fasten his seatbelt was atissue and hewas not prejudicedbythe amendment. To support the charged§ 121.317(f) and (k) violations, Complainant notes thatthe flight attendants issued specific instructions to Respondenf 0 

### andthatRespondent made a knowing choice to disregard the crew's instructions to sit down and fasten his seat beltwhenthe signwas illuminated.21 

### Respondent acknowledges that the "FastenSeatBelt" signmeans that passengers "mustbe seated with
... seatbelt[s] fastened while the signis lit."22 

### Respondent statedthat he did not know whether the signwas litwhen he got up to speakwithMs. Moorman;23 

### Respondent argues, however, that he was having a medical emergency and such an emergency made it appropriate to stand up and attemptto speakwithMs. Moormanregardless ofwhether the sign was lit. 24 

### Accordingly, Respondent argues that he did not violate either provision. We conclude that Respondent violated§§ 121.317(f) and (k) by leaving his seat and approaching the front ofthe aircraft while the "Fasten Seat Belt" sign was illuminated. Respondent provides no evidence to support his argument thathe was experiencing a medical emergency; and his assertion that he neededto speakwith Ms. Moorman does notjustifY therisk he posed to the order and safety ofthe cabin. 

### II. Violation of14 C.F.R. § 

### 121.580 By standing after being instructedbythe crewto sit and after the "Fasten Seat Belt" light came on, Respondent interfered with the crew inthe course oftheir duties. Under 14 C.F.R. § 121.580, "no personmay assault, threaten, intimidate, or interfere with a crewmember intheperformance ofthe crewmember's duties aboard an aircraft." The crew's primary duty is to ensure safe and secure travel,25 

### which demands that the crew can always

17 Id. (assessing a civilpenalty when apassenger stood because she urgently needed to use the restroom, but reducing the proposed $1,500 penalty to $300 where the respondent did not ignore or actively challenge crewmember instructions). 18 Complaint 

### 1f II.4; PHC Tr. (Oct. 18, 2011), at 9-11. 19 PHC Tr. (Mar. 2, 2012), at 5. 2

### °Compl'tPost-Hearing Br. II, n.4. 21 Compl't Post-Hearing Br. II. 22 Tr. 143. 23 Id. 24 Tr. 143-44. 25 See. e.g., Conger, FAA OrderNo. 2007-8, FDMS No. FAA-2004-20530, at 21-22 (Aug. 2, 2007). 

### -5-

### assure a safe environment and retain control ofthe cabin?6 

### A crew cannot appropriately fulfill these duties ifa passenger improperly distracts or overburdens their attentions.27 

### Complainant argues that Respondent, throughhis escalating misbehavior, interfered withthe crew's duties by improperly distracting them during the turbulent approach into Las Vegas.28 · 

### Respondent counters that he did not interfere withthe flight attendants' duties because he did notthreaten the crew.29**R~spondent** 

### argues thathe neededto speakwithMs. Moorman and that the flight attendants needed to help him.30 

### We concludethat Respondent interfered with crewmember duties by standing after the pilot turned on the "Fasten Seat Belt" sign and refusing to sitwhen asked. Respondentprevented the crew from completing their duties,31 

### forced the crewto standwhile the plane was inturbulent air, placing the crew and passengers atrisk, andpreventedthe crew from accessing the entire plane byblocking the aisle?2 

### Ifanother passenger had <Ul 

### emergency, the crew might have been unable to reachthem?3 

### Respondent also distracted the crewby forcing them to call a law enforcement officerto subdue him. 34

26 See Stout, FAA OrderNo. 98-12, at 8 (June 16, 1998). 27 See, e.g., Cox, FAA DocketNo. CPIOGL0005, FDMS No. FAA-2010-0623, at 4 (Oct. 14, 2011) ("ifa flight attendant has to deal with an antagonistic, hostile passenger and suffers consequences such as intimidation and personal distress, he or she is compromised in attendingto such critically impmtant duties"); AylyaTOv, FAA Docket No. CP05S00056, FDMS No. FAA-2005-230i7, at 4 (Nov. 2, 2006) (apassenger interferes with crewmember duties ifthat passenger's conduct creates iri the flight attendant a "nervous and flustered state resulting fi"om [the] confrontation [andhas] distracted him fi·om his duties [because the attendant]likely wouldnothavebeen fully engaged in the event offlight difficulties such as turbulence, orin case ofemergency"). 28 Compl'tPost-HearingBr. 9, 16-17. 29 Resp'tPostHearing Br. 13. 30 Tr
..148. Respondent's contention atthe hearing that he was suffering a medical emergency (Tr. 144) asserts an unpled and previously undisclosed affirmative defense. Since Respondent did not timely assert such a defense and offered no experttestimony, diagnosis, or other evidence to supporthis contention, he has providedno basis for considering such a defense. See 14 C.F.R. § 13.224(c) (2009). 31 See, e.g., Cmiger, supranote25, at 6, n.l5 ('"Flight attendants are not waiters. A flight attendant's primary responsibility is to assure the safety and security ofpassengers. Attendants must always be fully ready to deal with matters which pose a riskto the safety and security offlight, such as turbulence, rapid cabin decompression or worse.'") (quoting Initial Decision at 10-11); Tahaira, FAA DocketNo. CP09NM0006, FDMS No. FAA-2009- 0273, at4-9, 11, 19-20, 21 n.l4 (Mar. 17, 2010) (fmding interference with crewmember duties when apassenger stood while the "Fasten SeatBelt'' sign was illmninated, repeatedly changed seats, and refused instructions to remain seated and stay out ofthe exitrow). 32 Tr. 79, 90-91. 33 Tr.91. 34 Tr. 130; see Stout. supra note 26, at 6. 

### -6-

### While the crew owes each passenger a duty ofcare, Respondent's right to care does not supersede the otherpassengers' rightto aneffective flight crew.35 

### We conclude that'Respondent violated§ 121.580 by interfering with crewmembers inthe course oftheir duties. 

### III. Penalty Complainantproposes no penalty for the section l21.317(f) and (k) violations,36 

### sowe assess no penalty for those violations. Complainant seeks a $5,500 penalty for the section 121.580 violation and, after considering all relevant factors,37 

### we assess a $3,300 penalty for that violation? 8 

### An individual who violates

### th~ safety regulations is subjectto a penalty ofup to $11,000 for each violation,39 

### depending on the nature, gravity, circumstances, and intent underlying the type

35 See, e.g., Aylyarov, supranote 27, at 5 n.2 (RespondentAylyarov "appears tobelieve that, as an airline customer or client, his wants are paramount and require due accommodation
... [and] fundamentally misconstrues the crewpassenger relationship. A metaltube hurtlingthrough space is not at thatmomentprimarily a service business. Its principal mission is to maintain safety and secnrity for all participants
.... Other considerations, however desirable, must give way.n). 36 In its post-hearing brief, Complainant argues that a $1,500 penalty "is" appropriate" for each·ofthe violations of §§ 121.317(f) and (k), but only "ifthe ALJ determines thatRespondent did not violate section 121.580." Compl't Post-Hearing Br. 21. Since we fmd thatRespondent did violate section 121.580, that argument is moot, and Complainant provides no basis for apportioning any value to the § 121.317 violations. Complainant's "proposed

. sanction of$5,500 relates backto the original section 121.580 violation stated in the Notice
... [and] was not

increased as a result ofthe additional allegations ofviolations of 14 C.F.R. §§ 121.317(f) and 121.317(k)." Memorandum on Sanction (Nov 15, 2010), at 8. Since the two additional charges did not increase the total penalty sought, and Complainantrepeatedly asserted thatno penalty was sought for those violations (Id.; Tr. 156; PHC Tr. (Mar. 2, 2012), at 26-27),no penalty can be "assessed for them. 14 C.F.R. § 13.208(c) ("A complaint shall set forth

... the proposed civilpenalty in sufficient detail to provide notice ofany ...proposed civilpenalty."); Larnbton Doors, FAADocketNo. CPOOS00013, FDMS No. FAA-2000-7454, Initial Decision ofChiefAdministrative Law Judge, at 12-13 (May 7, 2004) ("Since the complaint seeks $36,000, that constitutes the upper limit for any penalty assessable in this proceeding."); Airways Freight Corp., FAA DocketNo. CP99S00023, FDMS No. FAA-2009- 5817, Initial Decision ofActing ChiefAdministrative Law Judge at 16 (Dec. 29, 2000) ("Since the complaint seeks $60,000, that constitutes the upper limit for any penalty assessable inthis proceeding."); AlphinAircraft, Inc., FAA. DocketNo. CP93EA0324, Oral Decision, at241:12-17 (Jan. 20, 1995) ("The level ofpenalty
... is limited to the ·amount asked for by the FAA in its complaint. Any other result ... raises serious due process questions."), respondent's appeal dismissed as untimely sub nom. Alphin Aviation, FAA Ord. No. 1995-15, at I (July 19, 1995). 37 "An appropriate civil penalty must reflectthe totality ofthe circumstances surrounding the violations. The FAA has determined that it will consider a variety offactors when determining an appropriate civil penalty, including: (I) the nature and circumstances ofthe violation; (2) the extent and gravity ofthe violation; (3) the person's degree of culpability; (4) the person's history ofprior violatiol1S, ifany; (5) the person's ability to pay the civil penalty; (6) the effect on the person's ability to stay in business; and (7) other matters asjustice may require." Folsom's Air Service. FAA OrderNo. 2008-11, FDMS No. FAA-2004-17277 at4 (Nov. 6, 2008). 38 Respondentrefusedtoraise ability to pay as an issue in settingthe penalty and declined to provide personal financial data, so wehave not considered ability to pay. PHC Tr. (Mar. 16, 2012), at 12-14; see PHC Tr. (Mar. 2, 2012), at 46. 39 49 U.S.C. 46301(a)(5)(A) (2006) (settingpenalty liability up to a maximum $10,000, but adjusted to $11,000 for inflationby 14 C.F.R. § 13.305). Complainantbears the bnrdenofdemonstrating the appropriateness ofthe proposed penalty. See 14 C.F.R.§ 13.224 (2009). 

### -7-

### ofchargespled. 40 

### When a section 121.580 violation rests onboth interference and assault, higher penalties have beenassessed.41 

### Thus, in 

### Salcido, 42 

### a derangedpassenger who struck a flight attendant,broke a passenger seatvideo screen, chewed oncredit cards andtrash, andrefused to obey the crew due to a psychotic condition was penalizedthe maximum $11,000. Similarly, in 

### Schwager,43 

### a passenger who assaulted a flight attendant and tried to enter the cockpitwas · penalizedthe maximumproposedpenalty of$5,000; and, in

### Franklin,44 

### a passenger who threw a wine glass at a crewmember was penalized $5,000. For section 121.580 interference violations that do not include an assault, more moderate penalties have beenapplied. Thus, in 

### Bonilla,45 

### a passenger who refusedto sit down, cursed at a crewmember, and cornered a crewmember betweenhimselfand the cockpit was assessed a $3,300 penalty. Similarly, in 

### Cullen, 46 

### a passenger who refused to stow a pet dog in a carrier case andthus caused the flight to return to the gate prior to departure was penalized $4,400. Relying on

### Salcido, Schwager, and

### Franklin, Complainant argues that Respondent's behavior deserves a $5,500 penalty because it created an escalating distraction equivalent to those incidents where passengers both interfered with and assaulted crewmembers. Respondent does not argue the appropriate level ofpenalty, except to deny any violation at all.47 

### The interference here does not constitute an assault, and innature and circumstance it was less threatening than the behavior in

### Salcido, Schwager, or 

### Franklin, which involved assault and· interference.48 

### Respondent's behavior is more akin

### to the nonviolent interference cases, particulmlythe 

### Bonilla case.49 In

### both

### Bonilla and the instant case, thepassenger spurnedthe

40
.

·See supranote 31. 41 See, e.g., Franklin, FAA DocketNo. CP07GL0006, FDMS No. FAA-2007-29194 (Aug. 29, 2008); Salcido, FAA DocketNo. CP08S00003, FDMS No. FAA-2008-0234 (Aug. 1, 2008); Schwager, FAA DocketNo. CP06SWOOIO, FDMS No. FAA-2006-24718 (May 23, 2008). 42 Supranote 41, at 1-2, 6, 8. 43 Supranote 41, at 7. 44 Supranote 41, at 6-8. 45 FAA DocketNo. CP03NM0002, FDMS No. FAA-2003-14239, at2-4 (Apr. 21, 2005): 46 FAADocketNo. CP05NM0002, FDMS No. FAA-2005-20311, at2, 3 (Mar. 28, 2006). 47 Respondent alleges that the FAA stated thathe mightbe denied a pilot license and was seekingto bully him into paying a $5,500 penaltyto make "this
... all go away." Resp'tPost Hearing Br. 10. We fmdno evidence ofsuch bullying in the record. We note, however, that his conduct on the plane and inthis proceeding may raise questions in connection with any pilot license application. 48 Respondent's "buck[ing]" against Special AgentMollica's grasp does not equate withthe assaults inthose cases, and itdoes notfall under § 121.580 since SpecialAgentMollicawas not a crewmember. Compl't Post-Hearing Br. 15; see 14 C.F.R. § 121.580 (2009). · 49 Bonilla, supra note 45. 

### -8-

### crew's authority imd monopolizedtheir time. Ineach, the passenger was disruptive, but despite their disruptiveness, neither Respondent nor Bonilla assaultedthe crew.50 

### Because ofthe circumstances, gravity, and nature ofRespondent's behavior, we conclude that $3,300 is the appropriate penalty here. It

### will temper Respondent's serious but nonviolent risk, will serve as a deterrent, and will serve the interests of justice. It is a significant penalty that incorporates due consideration for the nature and gravity ofRespondent's behavior and fulfills the statutory purpose. CONCLUSION ·Weconcludethat Respondent violated§§ 121.317(f) 

### and (k) and§ 121.S80 

### oftheFederal Aviation Regulations and assess a penalty of$3,300. · SO ORDERED

ChiefAdministrativfaw I 

### Attachment- Service List Note: This decision may be appealed to the FAA Administrator. Notice of appeal must conform to 14 C.F.R. 

### §§ 13.210, 13.211, and 13.233, requiring that notice be filed within 10
· days (plus an additional five days if mailed) from this decision's service date, and that the

notice is followed by a brief or memorandum within 50 days (plus an additional five days if mailed) from this decision's service date. That memorandum or brief must be filed in the FAA Hearing Docket using the appropriate address listed in 

### § 13.210(a). The appellant must send a copy of the notice and the memorandum or brief til opposing counsel. Filing notiee of appeal with thejudge is not sufficient. If

### neither party seeks review, this decision becomes final.

50 !d. at 3. 

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