# c 0 Joseph D. Barbera 14706 NE Erickson Dr. La Center, WA 98629 Tel: 360 263 5359 

### MAR 0

## 22015 

### HEARING DOCKET United States ofAmerica Department ofTransportation Office of Hearings

washington, DC In the Matterof: Joseph D. Barbera FAA Case No. 2013NM090056 FDMS No. FAA 2013-1083 Judge NotAssigned

Appeal toOrder Entering DefaultJudgment (Served 15 Oct 2014) Background On September 9, 2014, Administrative Law Judge ("ALJ" Richard C. Goodwin issued an "Order to Show Cause" directing RespondentJoseph D. Barbera ("Respondent") to answer, on or before October 1, 2014, the complaint, motions, and discovery requests ofComplainant Federal Aviation Administration ("Complainant"). The ALJ warned Respondent thatwithoutfull, complete, and timely responses, adefaultjudgment would be entered against him. The ALJ issued an "Order Entering DefaultJudgmentAgainst Respondent" on October 15, 2014. The ALJ wrote in the order thataccording 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 fordecision, and assessed Respondent the $1,100 civil penalty sought in the complaint. Respondent subsequently sent the ALJ adocument entitled "Response to Order Entering DefaultJudgment." The postmarkdate on the envelope is October 22, 2014. Inthis document, Respondent advised the ALJ that he had indeed metthe deadline specified in the order to show cause. Respondent also submitted United States Postal Service ("USPS") tracking numbers to show that he had metthe deadline.

1Once the AU issued the defaultjudgment, he lostjurisdiction over the case and did not have authorityto reconsider orvacate the defaultjudgment. Keller, FAA Order No. 2011-2 at6 (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 DefaultJudgment" tothe FAA decision maker for consideration as a notice ofappeal. On December 16, 2014, Complainant filed a motion captioned "Complainant's Motion to Affirm Dismissal" in which Complainant asks the FAA decision makerto affirm the AU's "Order Entering DefaultJudgment" on the grounds that Respondent failed tofile a timely answer and there is no genuine issue offact. Inthe motion, Complainant argues that Respondent's "Response to Order Entering DefaultJudgment" is nota notice of appeal and should not be construed as such. Complainant contends that ifthe FAA decisionmaker does treatthe "Response to Order Entering DefaultJudgment" as a notice ofappeal, then the FAA decisionmaker should set a schedule for briefing from both parties. On December 26, 2014, Respondent filed a documentcaptioned "Response to Order to Complainant's Motion toAffirm Dismissal." In this document, Respondent pointed out that he had provided tracking numbers that proved that he did respond on time, contrarytotheAU'sfinding. Respondentdisagrees with Complainantthatthere are no genuine issues of material fact, but he agrees completely with Complainant thata briefing schedule should be set. Most Recent (from Order Construing Document as Notice ofAppeal and Setting Briefing Schedule dated 7 January, 2015) Respondent's "Response to Order Entering DefaultJudgment" is herebyconstrued as a notice ofappeal. Under 14 C.F.R. 

### § 13.233(a), a party mustfile a notice ofappeal no later than 10 days after service ofthewritten initial decision on the parties. Under 14 C.F.R. 

### § 13 .211 (e), the "mailing rule/' Respondent had 5 additional days tofile a notice ofappeal. The AU served his "Order Entering DefaultJudgment" on October 15, 2014. Accordingly/ Respondent's notice ofappeal was due to be filed no laterthan October 30, 2014. Respondent's "Response to Order Entering DefaultJudgment" bears a postmarkofOctober 22, 20141 and thus was timely as a notice ofappeal. In addition, under 14 C.F.R. 

### § 13.233(c), a party must perfect an appeal by filing an appeal briefwith the FAA decisionmaker no later than 50 days after service ofa written initial decision on the party. Under ·14 C.F.R. § 13.211(e), the mailing rule, a respondent has 5 additional days tofile an appeal briefafter service by mail.



### 2Current The Respondent herebyAppeals the AU's "Order Entering DefaultJudgment". 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 ofthe FAA. 2. Further, Barbera shall answerthis 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 atthis location 

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### ZGJ.J:J.CH!i DIU'h dated 1 October 2014. USPS tracking info shows itwas delivered to and signed for bythe Hearing Docket Clerk, AGC-430 on October lth, 2014

. Additional hard copies can be submitted ifrequired. The Respondent did file a response to all ofthe FAA's Motions. They can be found in the DMS via

1 dated 1October 2014. USPS tracking info shows they were delivered to and signed for by the Hearing Docket Clerk, AGC-430 on October 1th, 2014.

dated 1October 2014. USPS tracking info shows they were delivered to and signed for by the Hearing Docket Clerk, AGC-430 on October lth, 2014

.



### 3dated 1October 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 ifthere were any questions or additional requests, never to receive a reply. Additionally, the Respondent did answerthe order with the following document:

Having fully complied with the Show Cause Order, the Respondent appeals the AU's decision in his Order Entering DefaultJudgmentAgainst Respondent dated 15 October 2015. Furthermore Respondent requests thatthis matter be moved to a hearing as soon as practical. Itis 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 matterthat 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

4Service 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 IndependenceAvenuer S.W. Washington! DC 20591 Atten: Vicki S. Leemon



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