c 0 

Joseph D. Barbera 

14706 NE Erickson Dr. 

La Center, WA 98629 

Tel: 360 263 5359 

MAR 0 2 2015 

HEARING DOCKET 

United States of America 

Department of Transportation 

Office of Hearings 

washington, DC 

In the Matter of: Joseph D. Barbera 

FAA Case No. 2013NM090056 

FDMS No. FAA 2013-1083 

Judge Not Assigned 

Appeal to Order Entering Default Judgment (Served 15 Oct 2014) 

Background 

On September 9, 2014, Administrative Law Judge ("ALJ" Richard C. Goodwin issued 

an "Order to Show Cause" directing Respondent Joseph D. Barbera ("Respondent") to 

answer, on or before October 1, 2014, the complaint, motions, and discovery requests 

of Complainant Federal Aviation Administration ("Complainant"). The ALJ warned 

Respondent that without full, complete, and timely responses, a default judgment 

would be entered against him. 

The ALJ issued an "Order Entering Default Judgment Against Respondent" on October 

15, 2014. The ALJ wrote in the order that according to pleadings filed in the Federal 

Docket Management System, Respondent had failed to answer the complaint, the ALJ's 

procedural order, Complainant's motions, and the ALJ show cause order. The ALJ 

dismissed Respondent's request for hearing with prejudice, deemed all the allegations 

in the complaint admitted, granted Complainant's motion for decision, and assessed 

Respondent the $1,100 civil penalty sought in the complaint. 

Respondent subsequently sent the ALJ a document entitled "Response to Order 

Entering Default Judgment." The postmark date on the envelope is October 22, 2014. 

In this document, Respondent advised the ALJ that he had indeed met the deadline 

specified in the order to show cause. Respondent also submitted United States Postal 

Service ("USPS") tracking numbers to show that he had met the deadline. 

1 
Once the AU issued the default judgment, he lost jurisdiction over the case and did not 

have authority to reconsider or vacate the default judgment. Keller, FAA Order No. 

2011-2 at 6 (January 11, 2011). As a result, in a document captioned "Order of 

Referral" and served on November 25, 2014, the AU referred Respondent's 

"Response to Order Entering Default Judgment" to the FAA decision maker for 

consideration as a notice of appeal. 

On December 16, 2014, Complainant filed a motion captioned "Complainant's Motion to 

Affirm Dismissal" in which Complainant asks the FAA decision maker to affirm the AU's 

"Order Entering Default Judgment" on the grounds that Respondent failed to file a 

timely answer and there is no genuine issue of fact. In the motion, Complainant argues 

that Respondent's "Response to Order Entering Default Judgment" is not a notice of 

appeal and should not be construed as such. Complainant contends that if the FAA 

decision maker does treat the "Response to Order Entering Default Judgment" as a 

notice of appeal, then the FAA decision maker should set a schedule for briefing from 

both parties. 

On December 26, 2014, Respondent filed a document captioned "Response to Order to 

Complainant's Motion to Affirm Dismissal." In this document, Respondent pointed out 

that he had provided tracking numbers that proved that he did respond on time, 

contrary to the AU's finding. Respondent disagrees with Complainant that there are no 

genuine issues of material fact, but he agrees completely with Complainant that a 

briefing schedule should be set. 

Most Recent 

(from Order Construing Document as Notice of Appeal and Setting Briefing Schedule 

dated 7 January, 2015) 

Respondent's "Response to Order Entering Default Judgment" is hereby construed as a 

notice of appeal. Under 14 C.F.R. § 13.233(a), a party must file a notice of appeal no 

later than 10 days after service of the written initial decision on the parties. Under 14 

C.F.R. § 13 .211 (e), the "mailing rule/' Respondent had 5 additional days to file a 

notice of appeal. The AU served his "Order Entering Default Judgment" on October 15, 

2014. Accordingly/ Respondent's notice of appeal was due to be filed no later than 

October 30, 2014. Respondent's "Response to Order Entering Default Judgment" 

bears a postmark of October 22, 20141 and thus was timely as a notice of appeal. 

In addition, under 14 C.F.R. § 13.233(c), a party must perfect an appeal by filing an 

appeal brief with the FAA decision maker no later than 50 days after service of a written 

initial decision on the party. Under ·14 C.F.R. § 13.211(e), the mailing rule, a 

respondent has 5 additional days to file an appeal brief after service by mail. 

2 
Current 

The Respondent hereby Appeals the AU's "Order Entering Default Judgment". The 

Respondent believes he has fully complied with the AU's "Order to Show Cause" dated 

9 September 2014, and offers the following documentation links. 

From the aforementioned order, the AU stated: 

" .. WHEREFORE, it be and is hereby ORDERED as follows: 

1. That on or before October 1, 2014, Barbera shall: 

a. Answer FAA's Complaint; and 

b. File a responses to all FAA's Motions; and 

c. Shall fully and completely comply with all discovery requests of the FAA. 

2. Further, Barbera shall answer this Order stating why the relief requested 

in the Agency's Motions to Strike Response to Motion for Summary 

Judgment should not be granted .. " 

The Respondent did Answer the complaint. The document is in DMS, titled IQ;;:;:QtLLi 

at this location 

lrttr;if'Nvv'N.nciJ<li illi(lfL~·'~If!YD7''~1Qi=W1J£:nti:J•::"tJ.itJJ=F£v.p, ZGJ.J:J.CH!i DIU'h dated 1 

October 2014. USPS tracking info shows it was delivered to and signed for by the 

Hearing Docket Clerk, AGC-430 on October lth, 2014 . Additional hard copies can be 

submitted if required. 

The Respondent did file a response to all of the FAA's Motions. They can be found in 

the DMS via 

1 

dated 1 October 2014. USPS tracking info shows they were delivered to and signed for 

by the Hearing Docket Clerk, AGC-430 on October 1th, 2014. 

dated 1 October 2014. USPS tracking info shows they were delivered to and signed for 

by the Hearing Docket Clerk, AGC-430 on October lth, 2014 . 

3 
dated 1 October 2014. USPS tracking info shows they were delivered to and signed for 

by the Hearing Docket Clerk, AGC-430 on October lth, 2014. 

Additionally, all discovery requests have been fully satisfied, and on two occasions the 

Respondent has asked the Complainant if there were any questions or additional 

requests, never to receive a reply. 

Additionally, the Respondent did answer the order with the following document: 

Having fully complied with the Show Cause Order, the Respondent appeals the AU's 

decision in his Order Entering Default Judgment Against Respondent dated 15 October 

2015. 

Furthermore 

Respondent requests that this matter be moved to a hearing as soon as practical. It is 

approaching two years from the events in question. Admittedly a layman and not a 

lawyer, the Respondent has responded faithfully in all requests. This is a matter that 

could have been settled simply at the administrative level long ago. Let's move on to 

the evidence and a hearing. 

Respectfully submitted, 22 February 2015 

Joseph D.i B rbera, Respondent 

4 
Service List 

Federal Aviation Administration 

Attn: Hearing Docket Clerk1 AGC-430 

Wilbur Wright Building - Suite 2W1000 

800 Independence Ave. SW 

Washington D.C. 20591 

David Shayner Complainant's Counsel 

Northwest Mountain Regionr ANM-7 

Federal Aviation Administration 

1601 Lind Ave. 1 SW 

Renton, WA 98057 

Federal Aviation Administration 

800 Independence Avenuer S.W. 

Washington! DC 20591 

Atten: Vicki S. Leemon 

5