05/05/2014 08:00 4252271007

DAVWF. SHAYNE FAA OFFIC.IJ OF REGIONAL COUNSJOt 1601 LIND AVE., SW RENTON, WASHINGTON98057 Tr:.lEPHONE: (425) 227-2165 FACSlMIL!'.: (425)227-1007 ANM7



### UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

ln the Matter of:

## ~\~- 

# \0<&3 Joseph D. Barbera 

### FAA Case No. 20!3NM090056 Judge Richard Goodwin PAGE 02/05



### COMPLAINANT'S MOTION FOR RECONSIDERATION QF DENIAL OF MOTION TO DEEM ALLEGATIONS ADMITTED AND TO DISMISS APPEAL Respondent responded to Complainant's motion and provided what could be construed to be an Answerto the Complaint in a letter postmarked April23, 20 !4. However, he did so 18 days late. He provides an explanation inhis letter dated April28, 2014, stating he thought he had 30 days from the date ofthe ALJ's Procedural Order. Aside from the fact that the Procedural Order states clearly and unequivocally that "Respondent must file a written Answer or motion within 30 days after service ofthe Complaint,,_ ."[emphasis added]; The Complaint itself, included the following admonition: ANSWER In accordance with Section 13.209 ofthe Federal Aviation Regulations, Joseph Barbera, must answer this Complaintnotlater than thirty (30) days from the time it is served on 

### it. Faih.u·e to file anAnswer within thirty (30) days without good cause shall be deemed an admission ofthe truth ofeach allegation contained inthe Complaint [14.C.F.R. 

### § l3.209(f)J. Respondent tacitly acknowledges he received and read the Complaint in his letter elated March 13, 2014, proving unavailability dates.

FAA v. Joseph D. Barbera. Complainant's Motion For Reconsidemtion ofi)enial of Motion to Deem Allegations Admitted and to**Disml~s** Appeal FAA Case No. 20l3NM0900S6 Pa•c I of5 DAVID F. SHAYNE, FAA ATTORNEY TEL: (425) 227-2165; FAX; (425) 227-100705/05/2014 08:00 4252271007 ANM7 PAGE 03/05

Under Section 13 .209(f) ofthe Rules ofPractice, failure tofile anAnswer withinthe time prescribed by the Rules shall be deemed an admission ofthe truth ofeach allegation contained 

### in the Complaint. 

### Tile Administratorhas held clearly and unequivocally held that procedural rules cannot be blatantly ignored, and deadlines will be strictly enforced absent a showing ofgood

cause. In Re Larry's Flying Service. Inc,FAA Order 98-4 (1998). While, inregards to other rules, the AL.T may have some discretion as to the granting or denial ofmotions to dismiss for untimely fil.ings, in regards to the requirement offiling an Answer under 14 C.F.R. 13.209, "[t]he Rules ofPractice and the Administrator's precedentreguire the lawjudge to deemthe allegations admitted, unless [the respondent] shows good cause for the untimeliness ofthe answer." Id. Moreover, 

### it is not necessary for Complainantto prove itisprejudicedby the delay at issue, the burdenis squarely on Respondent to establish good cause for the untimely filing or incur dismissal. Id. Accord, In Re Aviation Resources, Inc, FAA Order ofChiefAdministrative Law Judge Docketno. CP02EA006 (1992). Before accepting Respondent's Answer (which is inadequate on the rnerits as explained below) Respondent should at the very .leastbe required to showgood cause for his blatant failure to comply with the rules, 

### Itis unlikely he can show good cause. He clearly failed to read the informationhe was given, let alone familiarize himselfwith the procedural rules, as he is required to do 

### ifhe is representing himself. His argument thathe 'm.isunderstood' is specious. Underthese facts, and as a matter oflaw, this appeal must be dismissed.

FAA v_Joseph D. Barbera. Complainant's Motion ForReconsideration ofDenial of Motion to Deem Allegations Admitted and to T)ismlss Appeal FAA CaseNo. 2013NM090056 Pagel of5 DAVID F. SHAYNE, FAAA HORNEY TEL: (425) 227·2165: FAX: (425) 227-100705/05/2014 08:00 4252271007 ANM7 PAGE 04/05



### Accordingly, Complainant respectfuLly requests that theDenial ofits Motion be withdraw11 ortemporarily abated until such a time as ordered, Respondent can show good cause why he did not an.swerthe Complaint as required by the rules. 

### MOTION FOR DECISION (SUMMARY JUDGMENT) IfComplainant's Motion for Reconsideration is denied, then Complainant moves for Summary Judgment, pursuant to the provisions of 14 C.F.R. Section 13.218(1)(5) and Rule 56 of the Federal Rules ofCivil Procedure (FRCP), since, after considering the pleadings and the attached declarations and evidence, it should be clear that there is no genuine issue as to the material facts alleged and discussed below, and the FAA is entitled to ajudgmentin this case as a matter oflaw. In his putative Answer, Respondent does not actually deny any ofthe allegations set forth in 

### the Complaint. Instead, his onlyresponse is to state "I seriously question whether or not there is ample evidence to prove the flight violatedthe 

### 18,000 ft. boundary." That is not adenial, but should be taken as tacitadmission ofthe allegation. Therefore, the Complaint is in effect admitted. Assuming the above-language is (very generously) construed to be a denial, Respondent is sadly mistaken about the apparent Jack ofevidence. Attached (Exhibit I) is conclusive evidence the violation occurred as alleged, to wit, a copy ofthe signed letter in which th.e Respondent admits, in the very first line, that he committed the violation exactly as alleged. Moreover,the FAA obtained evidence that confirms the violation occurred as alleged, data showing the ultralight aircraft over 

### 20,000 feet. Attached (Exhibit 2). Respondent has not and cannot denythe allegations at issue. An admi.ssion should be itself be conclusive evidence the violation occurred and requires no corroboration, as would be the case FAA v. Joseph D. Barbera. Complains.n['S Motion ForReconsideration ofDenial of Motion to Deem Allegations Admitted and tq Dismiss tlppoal FAA Case No. Z013NM090056 Page 3 of5 DAVIDf.**SHI\VNT~,** FAAATTORNEY T.f:J,: (425)227·2165: !'AX: (425) 227·100785/85/2814 08:80 4252271007 PAGE 05/05

in a criminal proceeding (the 

### corpus delicti rule). But even ifsuch corroboration wereneeded, it is providedherein. Therefore summaryjudgment should be granted. 

### MOTION TO EXTENO »>SCOVERY DEADLINE Ifboth ofComplainant'sMotions are denied, then Complainant respectfully requests that the discovery completion deadline, currently set for three weeks hence, be extended for 60 days from

### the date ofthe order denying theMotions. 

### CONCLUSION For

### the reasons stated above, Respondent should be required 

### to show cause why

### he failed to timely file an Answer to the Complaint or; in the alternative, summaryjudgment should be granted and that Respondent be ordered to comply with Complainant's Final Notice of Proposed Civil Penalty asthe final Order inthis case. Ifboth motions are denied, the Complainant requests an extension ofth.e time to complete discovery. Resp submitted this 6111 day ofMay 2014.

FAA v.Joseph D. Barhera. Complainnnt's Motion For Reconsdderation ofDenial of Motion to Deem Allegations Admined and to Di.smiss Appeal FAA Case No. 2013NM090056 Page4of5 DAVID F. SHAYNE FAAATTORNEY TEL: (425) 227-2165:PAX: (425) 227-100705/05/2014 08:00 4252271007 ANM7 PAGE 05/05

CERTIFICATE OF SERVICE I hereby certifythat the foregoing COMPLAINANT'S MOTIONFORRECONSIDERATION OF DENlAL OF MOTIONTO DEEM ALLEGATIONS ADJv1ITTED AND TO DISMISS APPEAL has been served as designated by therecipient's name this date, to the following: Federal Aviatiotl Administration-Facsimile (W/0 Exhibits) and First Class, Retu.m Receipt Requested Mail (with Exhibits) Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 800 Independence Avenue SW Washington, D.C. 20591 Fax: (202) 493-5142 Joseph D Barbera- First Class and Retum Receipt Requested Mail 14706NE Erickson Dr. 

### La Center, WA 98629-4405 Dated this 61hday ofMay 2014.

Terri irk Office ofRegional Counsel (ANM-7) Federal Aviation Administration 1601 Lind Ave. SW Renton, WA 98057 (425) 227-2007

FAA v. Joseph D. Barbera. Complainant's Motion For Reconsideration ofDcn.ifll of Motion to Deem Allega.tlons Admitted and to Dismiss Appeal Fi\A CaseNo. 20i3NM090056 PageS of5 Dl\ VHJ F. SHAYNI:i, FAA ATTORNEY TEL: (425) 227·2165: FAX: (425) 227-100705/05/2014 08:00 4252271007 ANH7

FACSIMILE MESSAGE DAVID F. SHAYNE FEDERAL AVIATION ADMINISTRATION OFFICE OF REGIONAL COUNSEL ANM-7 1601 LJND 

### AVENUE S.W. RENTON, WASHINGTON 98057 PAGE 01/05

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### DATE: 

### TO: FAX NO.: 

### PHONE NO.: May 6,2014 HearingDocket Clerk 

## (202) 493-5142 RE: Joseph 

### Email: Babrera CaseNo. 2013NM090056 

### NO. PAGES: FROM: FAX 

### NO.: PHONE NO.: 

## 6 including cove1· 

## David F. Shayne**425~227**

## -2165 425-227-2160

COMPLAINANTS MOTION FOR RECONSIDERATlON O.F DENIAL OF MOTION TO DEEM ALLEOATIONS ADMITTED AND TO DISMOOS APPEAL (W/0 EXHIBITS)