 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.
