Wallaesa v. Federal Aviation Administration

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 15, 2015 Decided June 10, 2016

No. 13-1222

BRIAN ALLEN WALLAESA,

PETITIONER

v.

FEDERAL AVIATION ADMINISTRATION,

RESPONDENT

On Petition for Review of an Order of

the Federal Aviation Administration

Adam P. Feinberg, appointed by the court, argued the

cause for petitioner. With him on the brief was Anthony F.

Shelley, appointed by the court, and Aiysha S. Hussain.

Brian A. Wallaesa, pro se, was on the brief for petitioner.

Lewis S. Yelin, Attorney, U.S. Department of Justice,

argued the cause for respondent. With him on the brief were

Benjamin C. Mizer, Acting Assistant Attorney General,

Vincent H. Cohen, Jr., Acting U.S. Attorney, Sharon Swingle,

Attorney, and John C. Stuart Jr., Attorney, Federal Aviation

Administration.

Before: BROWN and WILKINS, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

2

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: In the catalog of human

endeavors, few activities are as fragile as flight. The air

offers no mercy for mistakes and no second chances. Flight

is, as Winston Churchill observed, “an extremely dangerous,

jealous and exacting mistress,” demanding unfettered

attention and respect. WINSTON S. CHURCHILL, THOUGHTS

AND ADVENTURES 128 (Leo Cooper pub., 1990). In that

unforgiving environment, otherwise minor disruptions may

threaten major damage.

In line with that reality, the Federal Aviation

Administration (FAA or Agency), charged with “promot[ing]

safe flight of civil aircraft,” 49 U.S.C. § 44701(a), has long

prohibited conduct aboard commercial flights that interferes

with crewmember duties, see 14 C.F.R. § 121.580. In the

determination now on review, the FAA Administrator

assessed a civil penalty against Brian Wallaesa for violating

that rule aboard a Southwest Airlines flight in 2009.

Aided by court-appointed amicus curiae, Wallaesa raises

multiple challenges to the Administrator’s determination. In

particular, Wallaesa claims that the FAA lacks authority to

proscribe non-violent, disruptive conduct and to initiate civil

penalty proceedings against passengers. In view of the FAA’s

broad statutory authority over aviation safety, and mindful of

the precariousness of human flight, we reject those

contentions and deny the petition for review.

3

I

A

On November 6, 2009, Wallaesa, a passenger on

Southwest Airlines flight 3049 from Baltimore to Las Vegas,

struck up a conversation in the boarding line with a female

passenger, Jaime T. Once onboard, Jaime sat in the third row

aisle seat on the captain’s side. 1 Wallaesa joined her, taking

the window seat. After another passenger took the middle

seat, Wallaesa switched seats with him. Before lifting off, the

crew delivered the by-now familiar safety briefing, instructing

passengers to keep their seatbelts fastened while the fasten

seatbelt sign was illuminated and to follow crewmember

instructions. See 14 C.F.R. § 121.571 (specifying

requirements for pre-flight safety briefings).

What began as innocuous “plane chatter” between

Wallaesa and Jaime fast became an annoyance. Amicus

Curiae Appendix (A.A.) 143. Wallaesa asked questions, and

Jaime “parried with polite attempts to end the conversation.”

Id. at 7. Trying to tune him out, Jaime put on headphones and

opened a book. Wallaesa did not take the hint. He tapped her

on the shoulder and asked whether she would mind if he put

his arm around her. She did mind, telling him “that is weird

and uncomfortable,” and that she had a boyfriend. Id. at 144.

Not long after, Wallaesa again tapped Jaime’s shoulder.

He wanted to ask a “corny” question. Id. at 146. She told

him not to ask, reminding him that she had a boyfriend.

Wallaesa asked anyway, wanting to know whether he could

“hold something beautiful today.” Id. Jaime told him he

1

The captain’s side is the left side, looking toward the front of the

aircraft.

4

crossed the line. She got up and exchanged seats with a

passenger across the aisle in the middle seat of row two. She

also flagged down a flight attendant, Wendy Moorman, and

relayed what happened.

Moorman brought Wallaesa to the back of the plane. She

explained that his behavior made Jaime uncomfortable.

Wallaesa expressed surprise. He told Moorman that he loved

Jaime, “and that she was the one for him.” Id. at 194.

Moorman told him to take his seat and not to talk to Jaime

again. Wallaesa complied with the first instruction, returning

to his seat. But a few minutes later, he was back up, walking

across the aisle to speak to Jaime. Moorman brought him to

the back of the plane a second time, again instructing him not

to speak to her. Tearful and upset, Wallaesa returned to his

seat. Soon, the same pattern repeated itself: Wallaesa left his

seat to talk to Jaime, Moorman intercepted him, and brought

him to the back. She reiterated her earlier instructions.

Wallaesa appeared angry, his eyes wide with agitation.

Moorman decided to reseat him, having him switch places

with passengers in row eighteen.

About an hour away from Las Vegas, the captain turned

on the fasten seatbelt sign in anticipation of turbulence. He

likewise instructed the flight attendants to take their seats.

Moorman fastened her seatbelt in the front of the aircraft.

Another flight attendant, Robert Dumond, took his seat in the

back. A short time later, Wallaesa stood up and walked

briskly to the front of the aircraft. Unfastening his seat belt,

Dumond chased after him. Moorman did the same from the

front. They caught up with him around aisle five. Dumond

grabbed his arm, telling him he needed to sit down. “I want

to talk to her,” Wallaesa replied. Id. at 246.

5

Taking him to the front, the flight attendants asked him

multiple times to return to his seat, noting that everyone—

crew included—had to remain seated with seatbelts fastened.

Wallaesa refused each request. Dumond would later explain

that the confrontation had become a “security situation.” Id.

at 248. Flight attendants are trained to protect the cockpit,

which was only steps away from the ongoing standoff. Those

security protocols in mind, Dumond stood with his back to the

cockpit door.

Moorman called the captain, who asked whether she

needed to summon an FBI Special Agent onboard who had

earlier identified himself to the crew. Moorman said she

needed the help. She waved to FBI Agent James Mollica,

who came forward to assist. Introducing himself as a law

enforcement officer, Agent Mollica asked Wallaesa to follow

the flight attendant’s instructions to return to his seat.

Unfazed, Wallaesa refused to go back until he could talk to

Jaime.

Agent Mollica upped the ante, telling Wallaesa that he

could do this the easy way or the hard way: the hard way, he

said, would involve handcuffs. Wallaesa said he did not care:

he simply had to speak with Jaime. Having chosen the hard

way, Agent Mollica handcuffed him. The flight attendants

cleared a row of seats, moving the occupants elsewhere.

Meanwhile, Wallaesa began yelling that he loved Jaime,

blaming the crew for keeping him from her.

Eventually he stopped yelling. Agent Mollica walked

Wallaesa toward the cleared row of seats. But Wallaesa

would not sit down, leaning back against Agent Mollica’s

body. Agent Mollica overpowered him, pushing his body

onto the seats. By the time Wallaesa was finally subdued,

roughly twenty-five minutes remained until touchdown. Once

6

on the ground, law enforcement officials met the plane at the

gate.

B

The FAA initiated civil penalty proceedings against

Wallaesa in February 2010. In a Notice of Proposed Civil

Penalty, the Agency sought a $5,500 penalty for interfering

with crewmember duties in violation of 14 C.F.R. § 121.580

(Interference Rule). See A.A. 33. The charge covered only

the last hour of the flight while the fasten seatbelt sign was

illuminated.

After Wallaesa requested an informal conference, the

FAA realized it had “inadvertently omitted” two other

violations: one for failing to fasten a seatbelt while the fasten

seatbelt sign was illuminated (14 C.F.R. § 121.317(f)), and

the other for failing to follow crewmember instructions to

comply with the fasten-seatbelt rule (14 C.F.R.

§ 121.317(k)). 2 A.A. 35. In April 2010, the FAA added those

charges in an Amended Notice of Proposed Civil Penalty,

leaving the proposed penalty amount and the factual

allegations unchanged. Two months later, in June, the FAA

issued a substantively identical Final Notice of Proposed Civil

Penalty.

Wallaesa exercised his right to request a hearing. In

response, the FAA issued a complaint reiterating the same

charges and factual allegations. At a one-day hearing in May

2012, four witnesses testified for the FAA: Jaime (by video

deposition), Moorman, Dumond and an FAA aviation safety

inspector. Proceeding pro se, Wallaesa testified on his own

2

We will collectively refer to these prohibitions as the Seatbelt

Rules.

7

behalf and called no other witnesses. Wallaesa advanced a

theory that a medical emergency—perhaps caused by

medications for anxiety and depression—caused his erratic

behavior. See id. at 309–13.

At the close of the evidence, the Administrative Law

Judge (ALJ) determined Wallaesa violated each of the

charged regulations. The medical emergency defense was

unpersuasive. The ALJ construed that argument as an

affirmative defense, which Wallaesa bore the burden of

proving. See id. at 10; 14 C.F.R. § 13.224(c). By offering no

evidence of a medical emergency beyond his own testimony,

Wallaesa failed to meet his burden. See A.A. 10. The ALJ

imposed a penalty of $3,300 for violating the Interference

Rule, accepting the FAA’s contention that the other violations

did not merit a penalty. Wallaesa appealed to the FAA

Administrator, who affirmed the ALJ’s findings and

conclusions.

Wallaesa subsequently filed a petition for review. We

have jurisdiction to consider his petition under 49 U.S.C.

§ 46301(g) and 49 U.S.C. § 46110. 3

3

After oral argument in this case, Wallaesa filed a petition under

Chapter 13 of the Bankruptcy Code. Filing for bankruptcy

ordinarily triggers an automatic stay of “the commencement or

continuation . . . of a judicial, administrative, or other action or

proceeding against the debtor.” 11 U.S.C. § 362(a)(1). But

Congress excluded certain actions from the automatic stay,

including actions by “a governmental unit” intended “to enforce

such governmental unit’s . . . police and regulatory power.” Id.

§ 362(b)(4). Having reviewed supplemental briefing on the issue,

we conclude the regulatory power exception applies here. The

FAA is a governmental unit, see 11 U.S.C. § 101(27) (defining

“governmental unit”), and the civil penalty proceeding against

Wallaesa enforced the Agency’s regulatory powers over matters of

8

II

The Administrative Procedure Act (APA) governs our

review. See City of Santa Monica v. FAA, 631 F.3d 550, 554

(D.C. Cir. 2011). Agency findings of fact are conclusive

when supported by substantial evidence. 49 U.S.C.

§ 46110(c). Nonfactual determinations will be overturned

“only if they are ‘arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with the law.’” City of Santa

Monica, 631 F.3d at 554 (quoting 5 U.S.C. § 706(2)(A)). By

statute, we “may consider an objection to an order of the . . .

Administrator only if the objection was made in the

proceeding conducted by the . . . Administrator,” absent some

“reasonable ground for not making the objection.” 49 U.S.C.

§ 46110(d). Before proceeding to the merits, we address the

import of this statutory exhaustion requirement. 4

Wallaesa filed his petition for review pro se. This court

appointed counsel as amicus curiae to assist Wallaesa “for the

limited purpose of presenting arguments in favor of

petitioner’s position concerning whether the FAA has

authority to impose civil penalties on passengers under 49

safety, see H.R. Rep. No. 95-595, at 342 (1977) (identifying safety

as an object of police and regulatory powers). Therefore, the

automatic stay does not apply to the civil penalty assessment or to

Wallaesa’s petition challenging that determination.

4

The government’s brief did not discuss section 46110(d), relying

instead on general principles of exhaustion. See Resp. Br. 31 n.7.

But the statutory exhaustion requirement “is not ‘waived’ simply

because the [government] fails to invoke it.” EEOC v. FLRA, 476

U.S. 19, 23 (1986). Section 46110(d), like the exhaustion

requirement at issue in EEOC v. FLRA, “speaks to courts, not

parties, and its plain language evinces an intent that the [FAA] shall

pass upon issues arising under the Act, thereby bringing its

expertise to bear on the resolution of those issues.” Id.

9

U.S.C. § 46301(a)(5)(A).” A.A. 346. Section 46301 provides

that “[a]n individual (except an airman serving as an airman)

or small business concern is liable to the Government for a

civil penalty of not more than $10,000 for violating (i) . . .

chapter 447 . . . ; or (ii) a regulation prescribed or order issued

under any provision to which clause (i) applies.” 49 U.S.C.

§ 46301(a)(5)(A).

Amicus’s brief focuses on the statutory subclauses,

noting that the FAA justified the Interference Rule based on

its authority under chapter 447. Amicus maintains that

chapter 447 does not authorize the regulation of non-violent

passenger conduct. Because the Interference Rule proscribes

non-violent passenger conduct, so the argument goes, it is

ultra vires, and the penalty imposed against Wallaesa must be

set aside. Section 46110(d) poses no bar to our considering

this argument. Before the Administrator and this court,

Wallaesa argued that chapter 447 “[a]pplies to requirements

of Pilots and Aircraft to Conform to Safety Standards,” not to

passengers. Resp. App. Br. 8, FAA v. Wallaesa (Oct. 26,

2012) (No. CP10WP0010); Pet. Br. 9. That claim sufficiently

includes the argument amicus now makes on Wallaesa’s

behalf.

Amicus raises several other issues, however, that

Wallaesa did not present to the Administrator. 5 As a matter

of first principles, court-appointed amici enjoy relatively wide

latitude to raise arguments not addressed on appeal by pro se

parties. See Bowie v. Maddox, 642 F.3d 1122, 1135 n.6 (D.C.

5

In particular, amicus contends that the Interference Rule and a set

of regulations governing civil penalty proceedings, see 14 C.F.R.

§ 13.14–16, were promulgated without adequate notice and

comment. Amicus also argues that Wallaesa’s conduct falls outside

of the FAA’s governing interpretation of the Interference Rule or, if

not, that the Interference Rule is impermissibly vague.

10

Cir. 2011). Indeed, “[i]t is precisely because an untrained pro

se party may be unable to identify and articulate the

potentially meritorious arguments in his case that we

sometimes exercise our discretion to appoint amici.” Id.

Raising new arguments is one thing—raising new issues

is entirely another. “It is a hard and fast rule of administrative

law, rooted in simple fairness, that issues not raised before an

agency are waived and will not be considered by a court on

review.” Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251,

1297 (D.C. Cir. 2004) (emphasis added); see Nat’l Wildlife

Fed’n v. EPA, 286 F.3d 554, 562 (D.C. Cir. 2002) (“[T]here is

a near absolute bar against raising new issues—factual or

legal—on appeal in the administrative context.”). That

principle binds both parties and amici, whether court-

appointed or not. It holds special force where, as here, an

appeal follows adversarial administrative proceedings in

which parties are expected to present issues material to their

case. In that setting, “the rationale for requiring issue

exhaustion is at its greatest,” Sims v. Apfel, 530 U.S. 103, 110

(2000), and the appetite of appellate courts to consider new

issues at its nadir. Because Wallaesa did not raise these

additional issues before the FAA, and no reasonable grounds

excused that failure, we decline to address them. See 49

U.S.C. § 46110(d).

Having whittled down the field of issues, five remain for

our consideration: (1) whether the FAA has authority to

prohibit passengers from interfering with crewmember duties,

and to impose civil penalties on passengers; (2) whether the

FAA unlawfully added charges for violating the Seatbelt

Rules; (3) whether substantial evidence supported the finding

that Wallaesa violated the charges; (4) whether Wallaesa

proved an affirmative defense; and (5) whether the penalty

11

amount improperly reflected guidance in an FAA order. We

address each in turn.

III

We first consider challenges to the FAA’s claim of

statutory authority to prohibit passenger interference and to

enforce the prohibition with civil penalties. We begin with a

brief statutory history of federal aviation regulation.

A

In 1903, the Wright Flyer leapt into the air and onto the

pages of history. In 1926, as commercial and military

applications of aviation evolved exponentially, Congress

entered the fray, federalizing air traffic rules and authorizing

certain regulations related to aviation safety. See Air

Commerce Act of 1926, ch. 344, 44 Stat. 568. Little more

than a decade later, Congress increased federal oversight of

aviation safety in the Civil Aeronautics Act of 1938, ch. 601,

52 Stat. 973. The Act created the Civil Aeronautics Authority

and charged it with prescribing, “Such reasonable rules and

regulations, or minimum standards, governing other practices,

methods, and procedure, as the Authority may find necessary

to provide adequately for safety in air commerce.” Ch. 601,

52 Stat. 973, 1008. Even with these developments, no single

agency exercised centralized control over aviation regulation.

Instead, a diffuse patchwork of executive branch actors

claimed some role in the field. See H.R. Rep. No. 85-2360, at

3743–44 (1958).

That splintered arrangement did not last long. In 1958,

following a rash of aircraft accidents, Congress

“consolidate[d] regulatory authority” in a new agency, the

Federal Aviation Administration (FAA). Sikkelee v.

12

Precision Airmotive Corp., No. 14-4193, 2016 WL 1567236,

at *1 (3d Cir. Apr. 19, 2016). Section 601(a)(6) of the

Federal Aviation Act of 1958 transferred to the FAA

Administrator the authority to make rules “necessary to

provide adequately for national security and safety in air

commerce.” Pub. L. No. 85-726, 72 Stat. 731, 775. In 1994,

Congress recodified that provision “without substantive

change” at 49 U.S.C. § 44701(a)(5). H.R. Rep. No. 103-180,

at 1 (1993). It provides that the Administrator “shall promote

safe flight of civil aircraft in air commerce by prescribing . . .

(5) regulations and minimum standards for other practices,

methods, and procedure the Administrator finds necessary for

safety in air commerce and national security.” 49 U.S.C.

§ 44701(a)(5).

Three years after the passage of the 1958 Act, a string of

aircraft hijackings “highlighted” to the FAA the need “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.” 26 Fed. Reg. 7009, 7009 (Aug. 4,

1961). Relying on section 601 of the 1958 Act, the FAA

promulgated a regulation providing that “[n]o person shall

assault, threaten, intimidate, or interfere with a crewmember

in the performance of his duties aboard an aircraft being

operated in air transportation.” Id. That regulation remains in

force. The current version, codified at 14 C.F.R. § 121.580, is

substantially the same. 6

6

The modern version simply replaces the phrase “operated in air

transportation” with the phrase “operated under this part.” 14

C.F.R. § 121.580.

13

B

Amicus argues the FAA lacks authority under section

44701(a)(5) to proscribe the non-violent passenger conduct

regulated by the Interference Rule. Our prior interpretation of

the statute dictates otherwise. In Bargmann v. Helms, 715

F.2d 638 (D.C. Cir. 1983), we reviewed the FAA’s denial of a

rulemaking petition seeking to require upgraded medical kits

on commercial aircraft. The FAA had denied the rulemaking

petition on grounds that it had no authority to require

upgraded kits. See 715 F.2d at 639–40. “[I]n light of the

broad statutory mandate under which the FAA operates,” we

found the FAA’s “attempt to limit” its power “unreasonable.”

Id. at 642.

We focused on Congress’s grant of authority in section

601(a)(6) of the 1958 Act, which authorizes “rules or

regulations . . . governing other practices, methods, and

procedure, as the Administrator may find necessary to provide

adequately for national security and safety in air commerce.”

Though that language did not “constitute a general welfare

clause, giving the FAA authority over virtually all aspects of

life on board commercial aircraft,” we determined that its

“proper scope . . . must comport with the broad language in

which Congress couched its delegation of authority.” Id.

That broad language conveyed a clear meaning: “The Act, by

its terms, empowers the Administrator to promulgate

regulations reasonably related to safety in flight.” Id.

(emphasis added).

Legislative history supported that conclusion. The 1958

Act gave “the FAA ‘plenary authority to [m]ake and enforce

safety regulations governing the design and operation of civil

aircraft’ in order to ensure the ‘maximum possible safety.’”

Id. (quoting H.R. Rep. No. 85-2360, at 3741–42); see id.

14

(“The 1938 and 1958 Acts have been construed to embody a

‘comprehensive scheme for the regulation of the safety aspect

of aviation.’”) (quoting Pike v. CAB, 303 F.2d 353, 355 (8th

Cir. 1962) (Blackmun, J.)). Against that backdrop, we had

“no doubt” the FAA had authority to mandate upgraded

medical kits. Id. Medical equipment satisfied the “minimum

nexus” to safety in flight, implicating “the personal safety of

the stricken passengers” and crew. Id. As a result, we

reversed and remanded the FAA’s denial of rulemaking

authority. See id. at 642–43.

The FAA justified the Interference Rule under 49 U.S.C.

§ 44701(a)(5), the same authority we examined in Bargmann.

Applying the rubric we set out in Bargmann, we agree with

the FAA that the Interference Rule reasonably relates to

safety in flight.

To begin, preventing passenger interference is no less

related to safety in flight than the quality of onboard medical

equipment. Without robust medical equipment, the crew

could not adequately care for ill passengers. And without a

prohibition on interference, the crew could not maintain the

“calm, safe and orderly environment” vital to commercial air

travel. See A.A. 30.

To put this predicament in perspective, consider the

following reported incidents of passenger misbehavior, which

include

a passenger urinating on another passenger; an

investment banker defecating on a food cart in response

to not being served another glass of wine; . . . a passenger

grabbing a flight attendant’s neck after being told to put

his cigarette out; an enraged passenger attempting to

enter the cockpit after being told he was whistling too

15

loudly; a passenger disrobing and proceeding to destroy

the lavatory and fight with another passenger; and four

members of a flight crew being physically assaulted by a

passenger after the passenger had been refused a

sandwich.

Tory A. Weigand, Air Rage and Legal Pitfalls for State-Based

Claims Challenging Airline Regulation of Passenger Conduct

During Flight, BOSTON B.J., May–June 2001, at 10. As those

examples colorfully suggest, passenger interference bears a

nexus to flight safety. Disruptive behavior sows distraction

and chaos in an environment where law and order is

paramount, potentially preventing the crew from executing

emergency procedures or reaching passengers in need. See,

e.g., Evgeniy V. Ignatov, FAA Order No. 96-6, 1996 WL

210098, at *2 (Feb. 13, 1996) (observing “that flight

attendants are responsible for” passenger safety and that

“passengers must follow the directions given by flight

attendants, because law and order in an enclosed capsule at

30,000 feet must be maintained”); United States v. Hicks, 980

F.2d 963, 972 (5th Cir. 1992) (“The potential for disaster

being so great, even the more mundane duties of flight

attendants which implicate safety cannot be taken for

granted.”).

Disruptive behavior need not be violent to interfere with

crewmember duties. To offer only two potential examples,

imagine a seated passenger loudly played a portable boombox

and refused to wear headphones, forcing crewmembers to

intervene. 7 Alternatively, imagine that a passenger blocked

7

This hypothetical actually happened. In 1991, several passengers

on a flight from Montego Bay, Jamaica to Houston, Texas blasted a

boombox radio, and indignantly refused multiple requests from

flight attendants to wear headphones or turn it off. Hicks, 980 F.2d

at 965–68. In language representative of the incident, one of the

16

the aisle, obstinately declining requests to move. Both

examples could theoretically constitute interference and

jeopardize flight safety, even though neither one involved

violence or the threat of violence (and, in the first example,

the offending passenger never left his seat).

It comes as no surprise, then, that the FAA has assessed

penalties for non-violent but disruptive passenger behavior.

In one case, a passenger refused to fasten his seatbelt, loudly

bickered with a flight attendant, and refused to return the

attendant’s security badge after she let him review it. See

David G. Stout, FAA Order No. 98-12, 1998 WL 348025, at

*1–4 (June 11, 1998). In another, a passenger angrily rejected

requests to turn off his personal electronic device and verbally

abused a flight attendant. See Hillard Abroms, FAA Order

No. 2008-2, 2008 WL 345387, at *1–3, *5–6 (Jan. 28, 2008).

These examples highlight a basic reality: without some

means of controlling disruptive passenger behavior, the FAA

could not hope to promote—much less to provide for—the

safety of passengers “encased in a metal capsule hurtling

through the air.” Ignatov, 1996 WL 210098, at *2.

Promoting aviation safety is the touchstone of the 1958 Act,

and the FAA’s surpassing responsibility. That mandate runs

throughout the Act from top to bottom. Congress commanded

that safety and security would hold “the highest priorities in

air commerce.” 49 U.S.C. § 40101(d)(1). And when

passengers told an attendant “to get her ‘ass[] back there and do

[her] job to get them something to eat and drink.’” Id. at 966.

None of the misbehaving passengers “committed assault or battery

or verbally threatened” anyone. Id. at 968. Even so, the Fifth

Circuit upheld their criminal convictions for interfering with

crewmember duties by way of intimidation. See id. at 975. The

court had no difficulty concluding that the outrageous—but non-

violent—behavior interfered with crewmember duties. See id.

17

prescribing regulations under section 44701, the

Administrator must first consider “the duty of an air carrier to

provide service with the highest possible degree of safety in

the public interest.” Id. § 44701(d)(1)(A). By prohibiting

behavior that puts at risk the safety of flight, the FAA has

satisfied our inquiry in Bargmann and acted within the

bounds of its statutory mandate.

Amicus lodges three counterarguments, none of which

have purchase. The first claims that non-violent passenger

behavior does not constitute a practice, method, or procedure

under section 44701(a)(5). That is a red herring. A

prohibition on such conduct may itself be a practice, method,

or procedure. Taking that view does not open the provision to

abuse. Bargmann requires that rules promulgated pursuant to

section 44701(a)(5) relate to safety in flight. Consider a rule

requiring crewmembers to wear socks of a certain color. That

mandate may well qualify as a “practice,” but the FAA may

have difficulty justifying it as related to safety in flight.

Amicus next employs the ejusdem generis canon to argue

that section 44701(a)(5) must bear a meaning similar to the

four subparts that precede it. That canon “limits general

terms which follow specific ones to matters similar to those

specified.” Gooch v. United States, 297 U.S. 124, 128 (1936).

Amicus suggests the preceding subparts in section 44701

relate solely to matters “involving the physical aircraft or air

carrier personnel.” Amicus Br. 20. According to amicus, the

fifth subpart, concerning practices and procedures “the

Administrator finds necessary for safety,” cannot reach the

separate matter of passenger conduct.

We disagree. First, the ejusdem generis “canon does not

control . . . when the whole context dictates a different

conclusion.” Norfolk & W. Ry. Co. v. Am. Train Dispatchers

18

Ass’n, 499 U.S. 117, 129 (1991). That rule of thumb applies

here. As we held in Bargmann, section 44701’s broad

language conveys broad authority. The subpart at issue,

(a)(5), provides authority to make rules reasonably related to

flight safety. It will not tolerate the narrower ambit amicus

seeks to impose. Second, even if the canon applied, the

Interference Rule would fall within the parameters amicus

suggests. As the earlier analysis reveals, passenger

interference necessarily involves the safety of the “physical

aircraft or air carrier personnel.”

In the third counterargument, amicus contends that

Congress implicitly barred the FAA from outlawing

passenger misbehavior when it enacted a statute criminalizing

limited forms of interference, 49 U.S.C. § 46504. Section

46504 applies to “[a]n individual . . . who, by assaulting or

intimidating a flight crew member or flight attendant of the

aircraft, interferes with the performance of the duties of the

member or attendant or lessens the ability of the member or

attendant to perform those duties.” 49 U.S.C. § 46504.

We refuse to the draw the strained inference proposed by

amicus. Section 46504 pertains only to interference by way

of assault or intimidation, a much narrower slice of conduct

than the Interference Rule’s comprehensive prohibition on

interference with crewmember duties. We fail to see how

Congress, in carving out as criminal a small universe of

conduct, forbade sub silentio the FAA from proscribing less

serious conduct that is nevertheless detrimental to safety in

flight. Cf. Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp.,

940 F.2d 685, 694 (D.C. Cir. 1991) (“[A] congressional

prohibition of particular conduct may actually support the

view that the administrative entity can exercise its authority to

eliminate a similar danger.”).

19

In sum, “we have no doubt” that proscribing passenger

interference with crewmember duties satisfies the “minimum

nexus” to safety in flight required by Bargmann. See 715

F.2d at 642. We therefore reject amicus’s argument.

C

Wallaesa next argues that the FAA lacks authority to

impose civil penalties on passengers. The relevant statute

reads as follows:

(A) An individual (except an airman serving as an

airman) or small business concern is liable to the Government

for a civil penalty of not more than $10,000 for violating—

(i) . . . chapter 447 (except sections 44717-44723); or

(ii) a regulation prescribed or order issued under any

provision to which clause (i) of this paragraph applies.

49 U.S.C. § 46301(a)(5)(A).

Because statutory text is the ultimate measuring stick of

statutory meaning, we start there. Section 46301 applies to

“individual[s],” a term the statute does not define. When

Congress leaves a term undefined, “we look first to the

word’s ordinary meaning.” Mohamad v. Palestinian Auth.,

132 S. Ct. 1702, 1706 (2012). For that task, we have some

help. The Supreme Court recently considered the meaning of

“individual” in the Torture Victim Protection Act (TVPA),

which also left the word undefined. See id. The Court turned

first to dictionaries. “As a noun, ‘individual’ ordinarily

means ‘[a] human being, a person.’” Id. at 1707 (quoting

7 OXFORD ENGLISH DICTIONARY 880 (2d ed. 1989)); see also,

e.g., WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

20

1152 (1986) (“a particular person”); BLACK’S LAW

DICTIONARY (10th ed. 2014) (“a single person or thing”).

Everyday parlance confirmed that common sense

understanding. “We say ‘the individual went to the store,’

‘the individual left the room,’ and ‘the individual took the

car,’ each time referring unmistakably to a natural person.”

Mohamad, 132 S. Ct. at 1707. While Congress “remains free,

as always, to give the word a broader or different meaning,”

“there must be some indication Congress intended such a

result.” Id. In the TVPA, the Court found no such contrary

indication.

A similar analysis applies here. Left undefined, the term

“individual” in section 46301 carries its ordinary meaning,

referring to a natural person. Very plainly, an airline

passenger is a natural person not serving as an airman. 8 See

49 U.S.C. § 46301(a)(5)(A). No evidence supports a broader

or different meaning.

If anything, statutory context reinforces our reading. In

section 46301(d)(5)(B), Congress provided special privileges

for some, but not all, “individuals.” Specifically, “[a]n

individual acting as a pilot, flight engineer, mechanic, or

repairman may appeal” a civil penalty order to the National

Transportation Safety Board (NTSB). 49 U.S.C.

§ 46301(d)(5)(B). Individuals not acting in those positions—

all other natural persons—have no right to appeal to the

NTSB. Wallaesa is therefore mistaken to suggest the term

individual includes only “operators of the service.” See Pet.

8

Congress defined “airman” to mean, among other things, “an

individual . . . in command, or as pilot, mechanic, or member of the

crew, who navigates aircraft when under way.” 49 U.S.C.

§ 40102(a)(8)(A).

21

Br. 10. If Congress had intended that narrow meaning, it

knew how to say so. Cf. Conn. Nat. Bank v. Germain, 503

U.S. 249, 253–54 (1992) (“[A] legislature says in a statute

what it means and means in a statute what it says.”).

It is true that Congress sometimes refers to passenger

conduct directly. In language familiar to anyone who has

flown, section 46301(b)(1) provides that “[a] passenger may

not tamper with, disable, or destroy a smoke alarm device

located in a lavatory on an aircraft providing air

transportation.” 49 U.S.C. § 46301(b)(1). While the

prohibition in (b)(1) speaks to passengers, the penalty

provision in (b)(2) instead addresses individuals: “An

individual violating this subsection is liable . . . for a civil

penalty of not more than $2,000.” Id. § 46301(b)(2)

(emphasis added). This juxtaposition must mean that the term

individual includes passengers. Were it otherwise, the penalty

provision would have no effect, authorizing fines against a

class of persons not subject to the prohibition.

We conclude that the ordinary meaning of “individual”

applies, and that passengers naturally fall within that

understanding. Any discussion of “legislative history is

unnecessary in light of the statute’s unambiguous language.”

Mohamad, 132 S. Ct. at 1709.

IV

In this section, we consider four challenges to decisions

made by the ALJ and the Administrator. We reject each one.

A

The FAA originally charged Wallaesa with violating the

Interference Rule. When Wallaesa requested an informal

22

conference, the Agency realized it had omitted violations of

the Seatbelt Rules, and added them in an amended notice.

The factual allegations and proposed penalty amount

remained the same. Wallaesa alleges the Agency improperly

added the new violations. As did the government, we read

Wallaesa’s challenge to suggest he received inadequate

notice.

That argument fails. “The Due Process Clause and the

APA require that an agency setting a matter for hearing

provide parties with adequate notice of the issues that would

be considered, and ultimately resolved, at that hearing.” Pub.

Serv. Comm’n of Ky. v. FERC, 397 F.3d 1004, 1012 (D.C.

Cir. 2005) (Roberts, J.); see 5 U.S.C. § 554(b)(3) (“Persons

entitled to notice of an agency hearing shall be timely

informed of . . . the matters of fact and law asserted.”).

Wallaesa received three separate notifications of the

additional charges: an Amended Notice of Proposed Civil

Penalty, a Final Notice of Proposed Civil Penalty, and a

formal Complaint. The Complaint issued in July 2010—

nearly two years before Wallaesa’s administrative hearing in

May 2012. On these facts, Wallaesa had more than adequate

notice. Neither the Due Process Clause nor the APA requires

anything more.

B

The final cluster of challenges centers on the

Administrator’s determination that Wallaesa violated the

Interference Rule and the Seatbelt Rules. That determination

stands if supported by substantial evidence, “mean[ing] such

relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Consol. Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938).

23

Substantial evidence supported the finding that Wallaesa

violated the Seatbelt Rules. Multiple eyewitnesses testified

that Wallaesa left his seat after the captain activated the fasten

seatbelt sign, strode toward the front of the aircraft, and

refused multiple requests to return to his seat. The

Administrator appropriately found that conduct in violation of

14 C.F.R. § 121.317(f), which requires passengers to remain

seated while the fasten seatbelt sign is activated, and 14

C.F.R. § 121.317(k), which requires passengers to follow

crewmember instructions concerning compliance with the

seatbelt sign.

Substantial evidence likewise supported the finding

concerning the Interference Rule, 14 C.F.R. § 121.580. As

the Administrator concluded, the flight attendants were

obligated “to obey the instructions of the pilot” to remain

seated and “to maintain a calm, safe and orderly

environment.” A.A. 30. Wallaesa directly interfered with

those duties. By marching to the front of the aircraft and

repeatedly ignoring crew instructions, Wallaesa effectively

forced the crew to stand during a potentially turbulent descent

in violation of the captain’s command to remain seated. And

he disrupted the crew’s ability to provide a safe and orderly

environment, triggering a standoff ended only by the

intervention of law enforcement. In short, adequate evidence

supported the finding that Wallaesa violated the Interference

Rule.

Wallaesa raises two final issues. In the first, he

challenges the Administrator’s finding that he failed to prove

an affirmative defense. We find no reason to disturb that

determination. Wallaesa bore the burden to prove his

affirmative defense, see 14 C.F.R. § 13.224(c), but failed to

introduce any evidence beyond his self-serving,

uncorroborated testimony.

24

Finally, Wallaesa contends that the amount of his civil

penalty improperly reflected the FAA’s guidance on

administrative penalties contained in FAA Order No.

2150.3B. According to Wallaesa, that order “has no basis in

U.S. code” and is not mentioned in the Agency’s civil penalty

regulations. Pet. Br. 8. Wallaesa misses the mark. FAA

Order 2150.3B simply articulates “the general policy the FAA

intends to apply in selecting the types of sanctions . . . and

specific sanction amounts to impose in legal enforcement

actions for typical violations of the FAA’s statute and

regulations.” FEDERAL AVIATION ADMINISTRATION, ORDER

NO. 2150.3B, FAA COMPLIANCE AND ENFORCEMENT

PROGRAM 7-1 (2007). In this case, the ALJ set a penalty

amount “based upon his analysis of sanctions imposed in past

cases involving similar violations,” not on the general

guidance contained in FAA Order No. 2150.3B. A.A. 26; see

also id. at 27 (noting that the $3,300 penalty imposed “was

below the recommended range” of $4,400 to $11,000). We

reject Wallaesa’s challenge.

V

Finding no merit in Wallaesa’s challenges, we deny the

petition for review.

So ordered.