UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter of: BRIAN W ALLAESA 

FAA Order No. 2013-2 

Docket No. 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 on board 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 of the decisions, the rules of 

practice, and other information, are available on the Internet at the following address: 

www.faa.gov/about/office _org/headquarters _offices/age/pol_ adjudication/AGC400/Civil _Penalty/. See 

14 C.F.R. § 13.21 0( 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 of the 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 or her 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) ... of this section." 

6 Section 121.580 provides "No person may assault, threaten, intimidate, or interfere with a 

crewmember in the perfonnance of the crewmember' s duties aboard an aircraft being operated under this 

part." 
belt when the sign is on. Section 121.580, among other things, prohibits passenger interference 

with the performance of a crewmember's duties on board an aircraft. The ALJ held that 

Wallaesa violated these regulations during the last hour of the flight by leaving his seat and 

approaching the front of the aircraft while the "Fasten Seat Belt" sign was lighted, and by 

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 and Enforcement Program, 

FAA Order No. 2150.3B; (3) the ALJ's finding that he violated 14 C.F.R. §§ 121.317(f) and (k) 

should be reversed because the FAA did not allege that he violated those regulations in the 

Notice of Proposed Civil Penalty (NPCP); (4) the evidence does not support the fmding of a 

violation of 14 C.F.R. § 121.580; and (5) he should not be 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 of the evidence supports the ALJ' s 

determination that Wallaesa violated 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 in this case, issued under 49 U.S.C. § 44701. Wallaesa had 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 of Proposed 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 brief but not specifically addressed in this 

decision have been considered, deemed not worthy of discussion, and rejected. 

2 
that the FAA was alleging that he had violated 14 C.F.R. §§ 121.317(1) and (k). Finally, 

Wallaesa failed to prove that he had a medical emergency that caused him to lose control of his 

actions on that flight. 

I. History of the Case 

Complainant alleged in the Complaint that on November 6, 2009, crewmembers on board 

Southwest Airlines Flight 3049 asked Wallaesa, a passenger, to take his seat when the "Fasten 

Seat Belt sign" was illuminated, but Wallaesa refused. 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 Complainant had not alleged 

specifically in the Complaint that Wallaesa failed to fasten his seat belt when the "Fasten Seat 

Belt" was on. Complainant argued that an allegation that Wallaesa did not fasten his seat belt 

when the "Fasten Seat Belt" sign was illuminated was implicit in the allegation in the Complaint 

that Wallaesa did not obey the crewmembers' instructions to take his seat when the "Fasten Seat 

Belt" sign was illuminated. 9 The ALI subsequently deemed the Complaint as amended to allege 

that Wallaesa also failed to put on his 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. _. 

3 
In his 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 of their 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 allegation that he 

had refused to take his seat." (3/2/2012 Prehearing Conf. Tr. 5.) 

A hearing was held on May 22, 2012. 12 Complainant introduced several exhibits 

including the deposition testimony of another passenger, Jaime Tomchik (Exhibits C- 2 and C-3) 

and a document written by Wallaesa on November 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 on that flight, and FAA Aviation Safety Inspector William 

Driscoll testified for Complainant. Wallaesa testified on his own behalf and introduced a copy of 

a statement handwritten by Tomchik on November 6, 2009. 

II. The Facts 

On November 6, 2009, Brian Wallaesa was a passenger on board 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, 20 II, Wallaesa stated that he 

had been asked to take his seat several times. He said that he did not know if the seat belt 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 of the regulations 

requiring them to comply with crewmember instructions. (1 0/18/11 Pre hearing 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. . 

4 
Tomchik. (Tr. 134; Exhibit C-2 at 8.) Wallaesa traded places with a passenger on the flight so 

that he could sit in the middle seat in Row 3, next to Tomchik, who was sitting in the aisle seat. 

Wallaesa continued to talk to Tomchik during the flight. At one point, Wallaesa tapped 

her shoulder and asked if he could hold her. 13 She replied "no." About 45 minutes into the 

flight, Tomchik exchanged seats with a passenger in Row 2 on the other side of the aisle. 

(Exhibit R-1 at 65; Tr. 18, 24.) Tomchik explained to Moorman, the flight attendant working in 

the "A" position (the front third of the aircraft) that she had changed her seat because Wallaesa 

had been making her feel uncomfortable. (Tr. 18, 59, 69; Exhibit C-2 at 15.Y4 

Moorman asked W allaesa to go to the back of the aircraft to talk with the other flight 

attendants and her. (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 want to talk to him, that he needed to leave her alone, and that he 

should return 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 ifWallaesa could talk to her, and 

Tomchik said that she did not want to talk to Wallaesa anymore. Moorman told Wallaesa that 

Tomchik had said again that she did not want to talk to 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 Wallaesa that he needed to come to the back of the aircraft with her. 

13 Wallaesa said to Tomchik, "Please allow me the pleasure of holding something beautiful 

today." (Tr. 141; Exhibit C-4 at 3; Exhibit R-1 at 64.) 

14 Moorman gave Tomchick a pad of paper 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 

Wallaesa in Seat 18C. (Tr. 39-40, 75.) 

Later, Wallaesa got up and told Dumond that he wanted to go up front and talk to 

Moorman. Dumond said that he would ask Moorman to come back and talk to him and that 

Wallaesa should stay seated. (Tr. 76.) Dumond told Moorman that 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 of returning to his 

seat, Wallaesa walked past Row 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 of Las Vegas, the captain turned on the "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 of the airplane. 15 (Tr. 41-42, 79-80.) 

Dumond, who was seated with his seat belt fastened, got up and followed W allaesa. 

(Tr. 79-80.) Moorman, who was seated in the front jump seat, observed Wallaesa coming to the 

front of the aircraft with Dumond behind him. (Tr. 42.) The two flight attendants stopped 

Wallaesa before 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. When they asked him 

to go back to his seat and sit down, he refused. (Tr. 43.) 

15 Complainant argues, and the ALJ found, that Wallaesa's conduct in violation of the regulations 

began at this point in the flight. 

6 
Moorman called the captain and explained that Wallaesa was not complying with their 

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 of the things 

that we are trained to do is to protect the cockpit. And, the area of the front galley is ... a clear 

zone, ... , and it is our job to protect that area so that no one can reach the cockpit door." 

(Tr. 84.) Dumond stood in front of the cockpit door, facing the cabin. (Tr. 83.) 

Mollica came up front, identified himself as "Agent Mollica" and tried to calm Wallaesa 

down. (Tr. 45-47,108-109, 110.) Mollica asked Wallaesaseveral times to sit down with him, 

and Wallaesa replied 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, Moorman re-seated Tomchik, because she believed that the situation was 

"escalating" and that moving Tomchik to the rear of the aircraft was necessary to protect 

Tomchik's safety. (Tr. 46.) 

At this point in the 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 of sweating a little bit. And, ... if I 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 in Row 3 so that 

Mollica and Wallaesa could sit in that row together. (Tr. 49, 86, 111.) Mollica and Wallaesa 

7 
started to walk from the front of the aircraft toward those seats. Then Wallaesa yelled that he 

wanted to say something to everyone on the aircraft. (Tr. 112.) Mollica grabbed Wallaesa and 

pulled him back to the front of the 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. Mollica took him toward Row 3 but Wallaesa did not sit down. 

(Tr. 116.) Mollica physically forced Wallaesa to 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 him to sit 

in the window seat, while Mollica sat in the middle seat. Dumond estimated that Mollica finally 

got Wallaesa seated about 25 to 30 minutes out from Las Vegas. (Tr. 98.) 

The "Fasten Seat Belt" sign remained illuminated until the end of the flight. (Tr. 54, 88-

89, 101.) TSA and FBI personnel, local law enforcement, Las Vegas police, and Southwest 

supervisors met the aircraft upon arrival. (Tr. 51, 89.) 

Wallaesa testified that he did not know whether the "Fasten Seat Belt" sign was on when 

he went up 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 out of 

his seat, even if the "Fasten Seat Belt" sign was on because 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 of Las Vegas when 

Wallaesa refused to comply with the flight attendants' instructions to return to his seat and fasten 

8 
his seat belt despite the fact that captain had turned on the "Fasten Seat Belt" sign. Complainant 

explained that it was not alleging that Wallaesa violated these regulations earlier in the flight. 

(Complainant's Post-Hearing Brief at 9.) According to Complainant, Wallaesa' s conduct prior 

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 of his conduct 

and that he both understood and was capable of complying with crewmember instructions but 

chose to disregard the crew's instructions .... " (Complainant's Post-Hearing Brief at 9.) 

III. The Initial Decision 

The ALJ explained that 14 C.P.R. §§ 121.317(f)( and (k) "protect the safety of the crew 

and passengers and that [a] penalty may be assessed even if a passenger has good reason to stand 

while the 'Fasten Seat Belt' sign is illuminated." (Initial Decision at 4.) He held that Wallaesa 

violated those regulations "by leaving his seat and approaching the front of the aircraft while the 

'Fasten Seat Belt' 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 "not justifY the risk he posed to the order 

and safety of the cabin." (Initial Decision at 5.) 

The ALJ wrote: 

Wallaesa interfered 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, placing the crew and passengers at risk, and prevented the crew from accessing the 

entire plane by blocking the aisle. If another 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 not base his findings of violations upon 

Wallaesa's interactions with Tomchik or with the flight attendants prior to the turning on of 

"Fasten Seat Belt" during the last hour of the 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 of decisions 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. W allaesa argues that as a passenger, he was not liable for a civil penalty under 

49 U.S.C. § 46301(a)(5). He contends that the sanction authority in 49 U.S.C.§ 46301(a)(5) for 

violations of regulations issued under specified provisions of the Federal aviation statute 

(including Chapter 447) only applies to "Airports, Airlines, the employees of said entities, the 

contractors of said entities and the employees and contractors of the FAA and Department of 

Transportation that oversee said entities." (Appeal Brief at 6.) 

Wallaesa misreads the statute. Section 4630l(a)(5)(A) of U.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 of not 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 maximum penalty has been increased for inflation to 

$11,000 by 14 C.F.R. § 13.305.) In particular, 49 U.S.C. § 44701 requires the Administrator "to 

promote safe flight of civil aircraft in air commerce by prescribing ... regulations and minimum 

10 
standards for other practices, 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 of passenger conduct in the interest of safety of 

flight. For example, Administrator N.E. Halaby explained in 1961, in the preamble to SR 448, 16 

that "recent hijackings of air carrier aircraft have highlighted a necessity to provide additional 

controls over the conduct of passengers in order to avoid a serious threat to the safety of flights 

and persons aboard them." 29 Fed. Reg. 7009 (August 4, 1961 ). When the FAA issued 

14 C.F.R. § 121.580 in 1999, it reiterated in tbe preamble that certain regulations, including 

existing rules prohibiting interference with crewmembers (i.e. 14 C.F.R. § 91.11) apply to 

passengers on board aircraft. 64 Fed. Reg. 1076, 1077-1078 (January 7, 1999.) Section 121.580 

was prescribed under the authority given to the Administrator under Chapter 447 of Title 49. 

16 SR 448 provided in pertinent part: "No person shall assault, threaten, intimidate, or interfere 

with a crewmember in the performance of his duties aboard an aircraft being operated in air 

transportation[.]" 26 Fed. Reg 17009 (August 4, 1961 ). 

SR 448 was adopted under the authority of Sections 313 and 601 of the Federal Aviation Act of 

1958. Section 601 of the Federal Aviation Act of 1958 provided, "The Administrator is empowered and 

it shall be his duty to promote safety of flight of civil aircraft in air commerce by prescribing and revising 

from time to time ... [ 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 of Title 49 U.S. Code, until it 

was codified in Title 49 of the U.S. Code as a result of the enactment of Public Law 103-272 (July 5, 

1994), 108 Stat. 745. The codification was not intended to have any substantive effect on the existing 

law. (!d.) In particular, Section 601 of the Act was incorporated in the U.S. Code as 49 U.S.C. § 44701. 

The U.S. Court of Appeals for the Fifth Circuit recognized that 49 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 of duties of a crewmember aboard an aircraft being operated. US. v. Kilpatrick, 759 F.2d 

1250, 1251 (5th Cir. 1985). 

11 
64 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 of seat belts by 

passengers, and requiring passengers to comply with instructions to fasten seat belts, its goal was 

to increase passenger and crewmember safety on board aircraft. These regulations were issued 

under Section 601 of the 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 with the "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 in neither 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 on FAA Order No. 2150.3B are invalid, and 

therefore, any argument made by the Complainant using the Staff Manual as a basis is an invalid 

statement[.]" (Appeal Brief at 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 staff manual designed to provide guidance to FAA 

enforcement personnel in the exercise oftheir discretion in handling compliance and 

12 
enforcement matters. (FAA Order No. 2150.3B at 1-1.) The sanction guidance contained in 

Chapter 7 and Appendix B of that 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 of sanction, ranges of sanction within those types, and 

specific sanction amounts to impose in legal enforcement actions for typical violations of the 

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 

penalty that may be assessed against an individual or small business for a violation of certain 

chapters of the Federal aviation statute or regulations issued thereunder, the Order provides 

guidance regarding whether the maximum or a lesser penalty would be appropriate for particular 

types of violations, taking the nature of the 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 in Appendix 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 maximum range 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 Order No. 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.)) 

13 
3. 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 of Section 121.580 in the 

Notice of Proposed Civil Penalty (NPCP). (Appeal Brief at 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 of Proposed 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, and the FAA proposed a $5,5000 

civil penalty, as in the NPCP. The FAA later issued a Final Notice of Proposed Civil Penalty 

and a Complaint, both of which 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 that the preponderance of the 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, and therefore, he could switch seats to sit next to Tomchik when he 

got on the flight; (2) he did not contact Tomchik when he walked to the front of the aircraft 

(when the "Fasten Seat Belt" sign was lighted); and (3) he did not threaten the flight attendants." 

Section 121.580 prohibits interference with the performance of the duties of a 

crewmember. Crewmember is defined as "a person 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 of Section 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 of the pilot (the lighted Fasten 

Seat Belt sign), the flight attendants, and a law enforcement officer who was asked by the flight 

attendants for assistance. 

14 
during 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 Order No. 1996-6 at 11-12 (February 13, 1996). Likewise, the 

pilots flying the aircraft were crewmembers19 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 of her duties. The Administrator wrote: 

While it was indeed the chief flight 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. When the chief flight attendant was in the back 

dealing with Bengry, she was unable to handle routine duties and emergencies at her 

assigned duty station. 

Michael Bengry, FAA Order No. 2003-9 at 7. 

There was ample evidence that Wallaesa failed to comply with the instructions of the 

crewmembers to sit down when the "Fasten Seat Belt" sign was lighted during the last 45 

minutes of the flight and interfered with the performance of their duties. The evidence 

established that the captain turned on the "Fasten Seat Belt" sign when the aircraft was about an 

hour outside of Las Vegas, and that not long afterwards, Wallaesa walked toward the front of the 

aircraft from his seat in Row 18. Flight Attendants Moorman and Dumond, who were required 

to sit with their seat belts fastened due to the captain's instructions, got up and asked Wallaesa to 

return to his seat. Wallaesa refused. They spent time talking to him in the front galley, trying to 

19 A pilot may also be a "flight crewmember," if he is assigned to duty on a flight. The term 

"flight crewmember" is defined as "a pilot, 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 of this appeal whether 

Mollica was a crewmember because the evidence clearly establishes that Wallaesa's conduct interfered 

with the performance of the duties of the 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 of the cockpit door, facing the cabin, so as to protect the cockpit. The flight 

attendants felt that it was 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 in that row together. 

Wallaesa' s behavior made it necessary for the flight attendants to focus their attention on 

him. Both of the flight attendants should have been seated in their assigned sections of the 

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 of the other 

passengers in their assigned sections. It was the responsibility of the flight attendants to obey the 

instructions of the pilot as well as to maintain a calm, safe and orderly environment aboard the 

aircraft.'' Evgeniy Ignatov, FAA Order No. 1996-6 at 10. Under these circumstances, Wallaesa 

interfered with the flight attendants in the performance of their primary 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 of the cabin. A crew cannot appropriately fulfill these duties 

if a 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 of metal that is hurtling through the air. Their 

primary responsibility ... is the safety of those 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 

just has to be maintained." (Evgeniy Ignatov, Docket No. CP94GL0076, at Tr. 115-116.) 

22 In David Stout, 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 of the flight attendants duties including "retaining control as a crewmember and assuring a 

safe and orderly environment." 

16 
5. Wallaesa argues that there are instances, such as a medical emergency/' in which a 

passenger's interference with the performance of a flight crewmember's duties or a passenger's 

getting out of his 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 

on the flight constitutes an affirmative defense. "A party who asserts an affirmative defense has 

the burden of proving the affirmative defense." 14 C.F.R. § 13.224(c). The preponderance of 

the evidence in this case does not show that the disturbance caused by Wallaesa was beyond his 

control and therefore, excuses his undue interference with the crewmembers. His self-diagnosis 

of a "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 of the flight. 25 (Tr. 145.) 

Moorman, Dumond, and Mollica testified that at no point did Wallaesa tell them that he was on 

medication or that he needed medical assistance. (Tr. 52, 91, 111.) Dumond testified that he did 

not consider Wallaesa' s lack of focus on the 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 that he became agitated because he was not getting what he wanted. 

(Tr. 85.) The evidence showed that 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 of concern 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 Brief at 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 of alcohol consumption on a person taking 

Paxil. 

17 
and patiently during other times during the flight. Hence, the evidence does not support a 

finding that Wallaesa' s behavior on board the flight should be excused. 

V. Conclusion 

In light of the foregoing, Wallaesa's appeal is denied. A $3,300 civil penalty is 

assessed.06 

M HAELP. HUERTA 

ADMINISTRATOR 

Federal Aviation Administration 

26 This order shall be considered an order assessing civil penalty unless Respondent files a 

petition for review within 60 days of service of this decision with the U.S. Court of Appeals for the 

District of Columbia Circuit or the U.S. court of appeals for the circuit in which the respondent resides or 

has its principal place of business. 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 of final agency decisions in civil penalty 

cases). 

18 
SERVED: AUGUST 27, 2012 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICEOFHEARINGS R· .Ec· EtVE.D 

WASHINGTON, DC 

IN THE MATTER OF 

BRIAN W ALLAESA 

FAA DOCKET NO. CP10WP0010 

(Civil Penalty Action) 

FDMS NO. FAA-2010-0628 

AUG 2 8 2012 

HEARING DOCKET 

INITIAL DECISION OF THE CIDEF ADMINISTRATIVE LAW JUDGE 

STATEMENT OF PROCEEDING 

This proceeding arises from a complaint issued July 28,2010, by the Federal Aviation 

Administration's Assistant Chief Counsel, Enforcement Division (Complainant), to Mr. Brian 

Wallaesa (Respondent), alleging that during Southwest Airlines flight 3049 from Baltimore, 

Maryland, to Las Vegas, Nevada, on November 6, 2009, when the seatbelt sign was illuminated, 

Respondent was asked several times by crewmembers to take his seat, but refused, artd that 

Respondent's conduct interfered with the performance of the crewmembers' duties. 

Complainant states 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 belt violations; but Complainant argues that the 

safety belt violations should be considered as part ofthe "totality of the circumstances" in setting 

a~~-4 . . 

1 "Each passenger required by § 121.31l(b) to occupy a seat or berth shall fasten his or her 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 "Each passenger shall comply with instructions given him or her by 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 a crewmember in the performance of the 

crewmernber's duties aboard an aircraft being operated under this part."' 14 C.P.R. § 121.580 (2009). 

4 Compl't Post-Hearing Br. 19. Complainant's Notice of Proposed Civil Penalty only charged Respondent 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 civil penalty. Id. Complainant states that the "$5,500 penalty proposed in the original Notice 

was based on Respondent's alleged violation of 14 C.P.R. § 121.580" (ill) and that "the civil penalty proposed in 

the Amended Notice and the Complaint was not increased as a result of the additional allegations of violations of 14 

C.P.R. §§ 121 .317(£) and (k)." I d. at 8. Complainant bears the burden of establishing each violation and 

demonstrating the appropriateness of the proposed civil penalty by a preponderance of reliable, probative, and 

substantial evidence. 14 C.P.R. §§ 13.223-24 (2009). 
Respondent contends that he did not interfere with the duties of the flight crew, 

5 that he was 

' i\J.e,t~!y ,s'lefinghelp fro~J:th9 flight crew to talk to a female passenger, 

6 and that, when told that 

· he mil.st sit 'dovfu; he coinplied. 7 At the hearing, Respondent contended that he was having a 

panic atta,ck and that "everything would have been resolved" if a flight attendant had spoken 

with hHh.8 ' > · . 

. -- ' . . ' -- .. ~ : . - . . . 

· ·' We instt~cted' the piuiies to· attempt to negotiate a settlement,9 but those negotiations failed; 10 

and a hearing was held on May 22,2012. Post-hearing briefs were submitted by Complainant 

and Respondent on July 2 and July 27,2012,11 respectively, and the case is ready for decision. 12 

FINDINGS AND CONCLUSIONS 

We find that Respondent failed to fasten his seat belt and failed to comply with the crew's 

orders to sit down while the "Fasten Seat Belt" sign was lit and therefore interfered with the crew 

in the performance of their duties. We conclude that Respondent violated 14 C.F .R. § § 121.317 

(f) and (k) and 14 C.F.R. § 121.580 and that $3,300 is the appropriate penalty. 

FACTS 

While queuing to board Southwest Airlines flight 3049 from Baltimore, Maryland, to Las 

Vegas, Nevada, on November 6, 2009, Respondent met and struck up a conversation with Jaime 

Tomchik (Tr. 134). Once aboard, Respondent sat in the captairt-side third-row window seat and 

Ms. Tomchik sat in that row's aisle seat (Compl't Ex. 2 (Tom chile Deposition), at 9-1 0; Resp't 

Ex. 1 (Tomchik Note); see Tr. 30-31). Respondent then traded places with a passenger in the 

middle seat to continue his conversation with Ms. Tomchik (Compl't Ex. 2, at 10; Resp't Ex. 1 ). 

Prior to departure the flight crew gave the normal preflight irtstructions, includirtg instructions on 

the safety belt requirements (Tr. 52). 

Respondent's conversation with Ms. Tomclllk lasted, on and off, through the first forty-five 

minutes of the flight (Compl't Ex. 2, at 10-15; see Tr. 69). It was largely one-sided; he inquired 

and she parried with polite attempts to end the conversation (Compl't Ex. 2, at 11-14). Around 

forty-five minutes into the flight, he asked if he could place his ann around her and if she 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 I 0, 2012, to reply to Respondent's post-hearing brief but failed to do so. 

12 This decision constitutes the Judge's findings of fact and conclusions of law, as well as the basis thereof, 

concerning all material issues of fact or law based on the entire record pursuant to 14 C.F.R. § 13.232(a). References 

to the record are intended to indicate relevant testimony and exhibits and do not necessarily represent all evidence 

supporting each fmding. All arguments have been considered, whether or not specifically discussed, and, where not 

accepted, have been rejected. 

-2-
let him "hcildO something beautiful today" (Tr. 141). She refused and exchanged seats with a 

gentleman across the aisle in the second row (Compl't Ex. 2, at 14). 

Ms. Tomchik called the front-cabin flight attendant, Wendy Moorman, and told her that she 

changed seats because Respondent made her uncomfortable and she did not want to speak with 

Respondent (Tr. 16, 18, 25). Ms. Moorman provided Ms. Tomchik with a pad and pen, and Ms. 

Tomchik recorded the incident's details (Tr. 19; Resp't Ex. 1). 

After speaking to Ms. Tomchik, Ms. Moorman escorted Respondent to the rear of the aircraft 

to tell him what Ms. Tomchik said and to "get his s.ide of the story" (Tr. 19-20, 70). Respondent 

said that he was in love with Ms. Tomchik (Tr. 29) and asked Ms. Moorman to ask Ms. Tomchik 

if she would be willing to speak with him (Tr. 34). Ms. Moorman told him that she would ask 

Ms. Tomchilc, but only if Respondent agreed to sit down, which he did (Tr. 34-35). After Ms. 

Tomchik refused, Ms. Moorman told Respondent that Ms. Tomchik did not wartt to speak with 

him (Tr. 35). 

Approximately five to ten minutes after Ms. Moorman told Respondent that Ms. Tomchik 

did not want to speak to him, Respondent left his seat, entered the aisle, and leaned over a 

passenger in order to speak with Ms. Tomchik.13 Ms. Moorman intervened, telling Respondent 

that he "need[ed] to come to the back of the aircraft ... now" (Tr. 36), and Ms. Moorman 

brought Respondent to the back for a second time (Tr. 37). After speaking with a "wide-eyed" 

and "agitated" Respondent (Tr. 39), Ms. Moorman and the rear flight attendant, Robert Dumond, 

reseated him in the back of the plane and both flight attendants then returned to their normal 

duties (Tr. 68, 75). 14 

One hour from landing, the pilot lit the "Fasten Seat Belt" sign and instructed the passengers 

and crew to remain seated because he expected turbulence (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. Dumond pursued and grabbed Respo11dent by the arm, telling him he must sit down (Tr. 

80). Respondent insisted he would not sit down until he spoke to Ms. Moorman (Tr. 81; see 

Compl't Ex. 2, 30). Mr. Dumond took Respondent to the front galley to resolve the situation (Tr. 

81). Mr. Dumond stood between Respondent and the cockpit door, because "at this point [there 

was] a security situation" (Tr. 83). 

13 Tr. 35-36; 73. Although both of the flight attendants who testified at the hearing were asked, neither could say 

whether the "Fasten Seat Belt" sign was illuminated while Respondent was moving about the 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; but they 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 her to signal an onboard FBI agent, Special Agent 

James Mollica, for assistance. 15 Special Agent Mollica identified himself to Respondent as 

"Agent Mollica" (Tr. 46-4 7, l 09) and tried to cahn Respondent, but Respondent said that he 

would not sit down until he could "talk to Jaime" (Tr. l 08). Respondent said that he loved Ms. 

Tomchik, that the flight crew was keeping him from her, and that he needed to use the public 

address system to explain his need to speak to Ms. Tomchik (Tr. 49, 113). 

Special Agent Mollica reminded Respondent that Mollica was a law enforcement officer (Tr. 

11 0) and stated that he would "finish the flight in handcuffs if [he did not] listen and sit down" 

(Tr. 11 0). Mollica felt that Respondent was "in attack mode" and "ready to do something ... 

stupid" (Tr. 111), so he handcuffed Respondent (Tr. 110). 

As Special Agent Mollica escorted him back to his seat, Respondent yelled that he would not 

sit down until he could make a statement over the plane's PA system (Tr. 113). Respondent 

"bucked" backward against Mollica, requiring Mollica to "forcefully push him forward" (Tr. 

114). Special Agent Mollica stated that he was ready for tlns kind of resistance, but that "if it was 

anybody else, it might have !mocked them over" (Tr. 115). 

Upon reaching row three, Respondent refused to sit down (Tr. 50). Agent Mollica placed 

Respondent in an "arm bar" (Tr. 116) and "laid him down into [row three]" (Tr. 88). Once in the 

row, Respondent told Mollica that "he would like to sit up, and ... that he would be good" (Tr. 

116). Mollica then seated Respondent in the window seat (Tr. 50, 88, 117), and he remained in 

that seat until the flight ended (Tr. 117, 137). Once the plane landed in Las Vegas, FBI agents 

and Las Vegas police officers, who had been notified by the captain of the flight about the 

situation on board (Tr. 51), met the 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 seat belt when the "Fasten Seat Belt" sign was illuminated and he failed to follow 

crewmember instructions to 'wear his safety belt. 

Section 121.317(f) provides that "each passenger ... shall fasten his or her safety belt about 

. him or her and keep it fastened while the 'Fasten Seat Belt' sign is lighted." Section 12.1.317(k) 

further provides "each passenger shall comply with instructions given him or her by a 

crewmember regarding compliance with" the seat belt requirement. 

These provisions protect the safety of the crew and passengers. 16 A penalty may be assessed 

even if a passenger has good reason to stand while the "Fasten Seat Belt" sign is illuminated.17 

15 Tr. 43. In accordance with normal procedure, Special Agent Mollica identified himself as 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 See DiGenova, FAA Docket No. 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 

belt while the "Fasten Seat Belt" sign was illuminated, 18 during a pre-hearing conference we 

ordered that the complaint be deemed amended to include that allegation, 19 since Respondent 

knew that failure to fasten his seat belt was at issue and he was not prejudiced by the 

amendment. To support the charged§ 121.317(f) and (k) violations, Complainant notes that the 

flight attendants issued specific instructions to Respondenf0 and that Respondent made a 

knowing choice to disregard the crew's instructions to sit down and fasten his seat belt when the 

sign was illuminated. 21 

Respondent acknowledges that the "Fasten Seat Belt" sign means that passengers "must be 

seated with ... seatbelt[s] fastened while the sign is lit."22 Respondent stated that he did not 

know whether the sign was lit when he got up to speak with Ms. Moorman;23 Respondent argues, 

however, that he was having a medical emergency and such an emergency made it appropriate to 

stand up and attempt to speak with Ms. Moorman regardless of whether 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 of the aircraft while the "Fasten Seat Belt" sign was illuminated. 

Respondent provides no evidence to support his argument that he was experiencing a medical 

emergency; and his assertion that he needed to speak with Ms. Moorman does not justifY the risk 

he posed to the order and safety ofthe cabin. 

II. Violation of14 C.F.R. § 121.580 

By standing after being instructed by the crew to sit and after the "Fasten Seat Belt" light 

came on, Respondent interfered with the crew in the course of their duties. 

Under 14 C.F.R. § 121.580, "no person may assault, threaten, intimidate, or interfere with a 

crewmember in the performance of the 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 I d. (assessing a civil penalty when a passenger 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't Post-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 Order No. 2007-8, FDMS No. FAA-2004-20530, at 21-22 (Aug. 2, 2007). 

-5-
assure a safe environment and retain control of the cabin?6 A crew cannot appropriately fulfill 

these duties if a passenger improperly distracts or overburdens their attentions.27 

Complainant argues that Respondent, through his escalating misbehavior, interfered with the 

crew's duties by improperly distracting them during the turbulent approach into Las Vegas.28 · 

Respondent counters that he did not interfere with the flight attendants' duties because he did 

not threaten the crew.29 R~spondent argues that he needed to speak with Ms. Moorman and that 

the flight attendants needed to help him. 30 

We conclude that Respondent interfered 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,31 forced the crew to stand while the plane was in turbulent air, 

placing the crew and passengers at risk, and prevented the crew from accessing the entire plane 

by blocking the aisle?2 If another passenger had <Ul emergency, the crew might have been unable 

to reach them?3 Respondent also distracted the crew by forcing them to call a law enforcement 

officer to subdue him.34 

26 See Stout, FAA Order No. 98-12, at 8 (June 16, 1998). 

27 See, e.g., Cox, FAA Docket No. CPIOGL0005, FDMS No. FAA-2010-0623, at 4 (Oct. 14, 2011) ("if a 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 attending to such critically impmtant duties"); AylyaTOv, FAA Docket 

No. CP05S00056, FDMS No. FAA-2005-230i 7, at 4 (Nov. 2, 2006) (a passenger interferes with crewmember 

duties if that passenger's conduct creates iri the flight attendant a "nervous and flustered state resulting fi"om [the] 

confrontation [and has] distracted him fi·om his duties [because the attendant]likely would not have been fully 

engaged in the event of flight difficulties such as turbulence, or in case of emergency"). 

28 Compl't Post-Hearing Br. 9, 16-17. 

29 Resp't Post Hearing Br. 13. 

30 Tr .. 148. Respondent's contention at the 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 expert testimony, diagnosis, or other evidence to support his contention, he has provided no basis for 

considering such a defense. See 14 C.F.R. § 13.224(c) (2009). 

31 See, e.g., Cmiger, supra note25, at 6, n.l5 ('"Flight attendants are not waiters. A flight attendant's primary 

responsibility is to assure the safety and security of passengers. Attendants must always be fully ready to deal with 

matters which pose a risk to the safety and security of flight, such as turbulence, rapid cabin decompression or 

worse.'") (quoting Initial Decision at 10-11 ); Tahaira, FAA Docket No. CP09NM0006, FDMS No. F AA-2009-

0273, at 4-9, 11, 19-20, 21 n.l4 (Mar. 17, 2010) (fmding interference with crewmember duties when a passenger 

stood while the "Fasten Seat Belt'' sign was illmninated, repeatedly changed seats, and refused instructions to 

remain seated and stay out of the exit row). 

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 of care, Respondent's right to care does not 

supersede the other passengers' right to an effective flight crew.

35 We conclude that'Respondent 

violated§ 121.580 by interfering with crewmembers in the course of their duties. 

III. Penalty 

Complainant proposes no penalty for the section l21.317(f) and (k) violations,36 so we 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 subject to a penalty of up to $11,000 for 

each violation,39 depending on the nature, gravity, circumstances, and intent underlying the type 

35 See, e.g., Aylyarov, supra note 27, at 5 n.2 (Respondent Aylyarov "appears to believe that, as an airline customer 

or client, his wants are paramount and require due accommodation ... [and] fundamentally misconstrues the crewpassenger relationship. A metal tube hurtling through space is not at that moment primarily 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· of the violations of 

§§ 121.317(f) and (k), but only "if the ALJ determines that Respondent did not violate section 121.580." Compl't 

Post-Hearing Br. 21. Since we fmd that Respondent 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 back to the original section 121.580 violation stated in the Notice ... [and] was not 

increased as a result of the additional allegations of violations 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 Complainant repeatedly asserted that no penalty was sought for those violations (I d.; 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 civil penalty in sufficient detail to provide notice of any ... proposed civil penalty."); Larnbton 

Doors, FAA Docket No. CPOOS00013, FDMS No. FAA-2000-7454, Initial Decision of Chief Administrative 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 Docket No. CP99S00023, FDMS No. FAA-2009-

5817, Initial Decision of Acting Chief Administrative Law Judge at 16 (Dec. 29, 2000) ("Since the complaint seeks 

$60,000, that constitutes the upper limit for any penalty assessable in this proceeding."); Alphin Aircraft, Inc., FAA. 

Docket No. CP93EA0324, Oral Decision, at241:12-17 (Jan. 20, 1995) ("The level of penalty ... 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 reflect the totality of the circumstances surrounding the violations. The FAA 

has determined that it will consider a variety of factors when determining an appropriate civil penalty, including: (I) 

the nature and circumstances of the violation; (2) the extent and gravity of the violation; (3) the person's degree of 

culpability; (4) the person's history of prior violatiol1S, if any; (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 as justice may require." Folsom's Air Service. 

FAA Order No. 2008-11, FDMS No. FAA-2004-17277 at4 (Nov. 6, 2008). 

38 Respondent refused to raise ability to pay as an issue in setting the penalty and declined to provide personal 

financial data, so we have 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) (setting penalty liability up to a maximum $10,000, but adjusted to $11,000 for 

inflation by 14 C.F.R. § 13.305). Complainant bears the bnrden of demonstrating the appropriateness of the 

proposed penalty. See 14 C.F.R.§ 13.224 (2009). 

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of charges pled.40 When a section 121.580 violation rests on both interference and assault, higher 

penalties have been assessed.41 Thus, in Salcido,42 

a deranged passenger who struck a flight 

attendant, broke a passenger seat video screen, chewed on credit cards and trash, and refused to 

obey the crew due to a psychotic condition was penalized the maximum $11,000. Similarly, in 

Schwager,43 a passenger who assaulted a flight attendant and tried to enter the cockpit was · 

penalized the maximum proposed penalty 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 been applied. Thus, in Bonilla,45 

a passenger who refused to sit down, cursed at a 

crew member, and cornered a crewmember between himself and 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 

and thus 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 of penalty, except to deny any violation at all.47 

The interference here does not constitute an assault, and in nature 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, 

particulmly the Bonilla case. 49 In both Bonilla and the instant case, the passenger spurned the 

40 . ·See supra note 31. 

41 See, e.g., Franklin, FAA Docket No. CP07GL0006, FDMS No. FAA-2007-29194 (Aug. 29, 2008); Salcido, FAA 

Docket No. CP08S00003, FDMS No. FAA-2008-0234 (Aug. 1, 2008); Schwager, FAA Docket No. CP06SWOOIO, 

FDMS No. FAA-2006-24718 (May 23, 2008). 

42 Supra note 41, at 1-2, 6, 8. 

43 Supra note 41, at 7. 

44 Supra note 41, at 6-8. 

45 FAA Docket No. CP03NM0002, FDMS No. FAA-2003-14239, at2-4 (Apr. 21, 2005): 

46 FAA Docket No. CP05NM0002, FDMS No. FAA-2005-20311, at2, 3 (Mar. 28, 2006). 

47 Respondent alleges that the FAA stated that he might be denied a pilot license and was seeking to bully him into 

paying a $5,500 penalty to make "this ... all go away." Resp'tPost Hearing Br. 10. We fmdno evidence of such 

bullying in the record. We note, however, that his conduct on the plane and in this proceeding may raise questions in 

connection with any pilot license application. 

48 Respondent's "buck[ing]" against Special Agent Mollica's grasp does not equate with the assaults in those cases, 

and it does not fall under § 121.580 since Special Agent Mollica was not a crewmember. Compl't Post-Hearing Br. 

15; see 14 C.F.R. § 121.580 (2009). · 

49 Bonilla, supra note 45. 

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crew's authority imd monopolized their time. In each, the passenger was disruptive, but despite 

their disruptiveness, neither Respondent nor Bonilla assaulted the crew. 

50 

Because of the circumstances, gravity, and nature of Respondent'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 of Respondent's behavior and fulfills 

the statutory purpose. 

CONCLUSION 

·We conclude that Respondent violated§§ 121.317(f) and (k) and§ 121.S80 of the Federal 

Aviation Regulations and assess a penalty of $3,300. · 

SO ORDERED 

Chief Administrativfaw 

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 the judge is not sufficient. If neither party seeks review, this decision 

becomes final. 

50 !d. at 3. 

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