05/05/2014 08:00 4252271007 

DAVWF. SHAYNE 

FAA OFFIC.IJ OF REGIONAL COUNSJOt 

1601 LIND AVE., SW 

RENTON, WASHINGTON 98057 

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 Answer to the Complaint in a letter postmarked April23, 20 !4. However, he did so 18 

days late. He provides an explanation in his letter dated April28, 2014, stating he thought he had 

30 days from the date of the 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 of the Complaint,,_ ."[emphasis added]; The Complaint itself, 

included the following admonition: 

ANSWER 

In accordance with Section 13.209 of the Federal Aviation Regulations, Joseph Barbera, must 

answer this Complaint not later than thirty (30) days from the time it is served on it. Faih.u·e to 

file an Answer within thirty (30) days without good cause shall be deemed an admission of the 

truth of each allegation contained in the 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) 227-1007 
05/05/2014 08:00 4252271007 ANM7 PAGE 03/05 

Under Section 13 .209(f) of the Rules of Practice, failure to file an Answer within the time 

prescribed by the Rules shall be deemed an admission of the truth of each allegation contained in 

the Complaint. Tile Administrator has held clearly and unequivocally held that procedural rules 

cannot be blatantly ignored, and deadlines will be strictly enforced absent a showing of good 

cause. In Re Larry's Flying Service. Inc, FAA Order 98-4 (1998). While, in regards to other 

rules, the AL.T may have some discretion as to the granting or denial of motions to dismiss for 

untimely fil.ings, in regards to the requirement of filing an Answer under 14 C.F.R. 13.209, "[t]he 

Rules of Practice and the Administrator's precedent reguire the law judge to deem the allegations 

admitted, unless [the respondent] shows good cause for the untimeliness of the answer." Id. 

Moreover, it is not necessary for Complainant to prove it is prejudiced by the delay at issue, the 

burden is squarely on Respondent to establish good cause for the untimely filing or incur 

dismissal. Id. Accord, In Re Aviation Resources, Inc, FAA Order of Chief Administrative Law 

Judge Docket no. CP02EA006 (1992). 

Before accepting Respondent's Answer (which is inadequate on the rnerits as explained 

below) Respondent should at the very .least be required to show good cause for his blatant failure 

to comply with the rules, It is unlikely he can show good cause. He clearly failed to read the 

information he was given, let alone familiarize himself with the procedural rules, as he is 

required to do if he is representing himself. His argument that he 'm.isunderstood' is specious. 

Under these facts, and as a matter of law, this appeal must be dismissed. 

FAA v_Joseph D. Barbera. 

Complainant's Motion For Reconsideration of Denial of 

Motion to Deem Allegations Admitted and to T)ismlss 

Appeal 

FAA Case No. 2013NM090056 

Pagel of5 

DAVID F. SHAYNE, FAA A HORNEY 

TEL: (425) 227·2165: FAX: (425) 227-1007 
05/05/2014 08:00 4252271007 ANM7 PAGE 04/05 

Accordingly, Complainant respectfuLly requests that the Denial of its Motion be 

withdraw11 or temporarily abated until such a time as ordered, Respondent can show good cause 

why he did not an.swer the Complaint as required by the rules. 

MOTION FOR DECISION (SUMMARY JUDGMENT) 

If Complainant'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 of Civil 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 a judgment in this case as a 

matter oflaw. 

In his putative Answer, Respondent does not actually deny any of the allegations set forth in 

the Complaint. Instead, his only response is to state "I seriously question whether or not there is 

ample evidence to prove the flight violated the 18,000 ft. boundary." That is not a denial, but should 

be taken as tacit admission of the 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 of evidence. Attached (Exhibit I) is conclusive evidence the 

violation occurred as alleged, to wit, a copy of the 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 deny the 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 For Reconsideration of Denial of 

Motion to Deem Allegations Admitted and tq Dismiss 

tlppoal 

FAA Case No. Z013NM090056 

Page 3 of5 

DAVID f. SHI\VNT~, FAA ATTORNEY 

T.f:J,: (425)227·2165: !'AX: (425) 227·1007 
85/85/2814 08:80 4252271007 PAGE 05/05 

in a criminal proceeding (the corpus delicti rule). But even if such corroboration were needed, it is 

provided herein. 

Therefore summary judgment should be granted. 

MOTION TO EXTENO »>SCOVERY DEADLINE 

If both of Complainant's Motions 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 of the order denying the Motions. 

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, summary judgment should be granted 

and that Respondent be ordered to comply with Complainant's Final Notice of Proposed Civil 

Penalty as the final Order in this case. 

If both motions are denied, the Complainant requests an extension of th.e time to complete 

discovery. 

Resp submitted this 6

111 day of May 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 FAA ATTORNEY 

TEL: (425) 227-2165: PAX: (425) 227-1007 
05/05/2014 08:00 4252271007 ANM7 PAGE 05/05 

CERTIFICATE OF SERVICE 

I hereby certify that the foregoing COMPLAINANT'S MOTION FOR RECONSIDERATION OF 

DENlAL OF MOTION TO DEEM ALLEGATIONS ADJv1ITTED AND TO DISMISS APPEAL 

has been served as designated by the recipient'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 2Wl 000 

800 Independence Avenue SW 

Washington, D.C. 20591 

Fax: (202) 493-5142 

Joseph D Barbera- First Class and Retum Receipt Requested Mail 

14706 NE Erickson Dr. 

La Center, WA 98629-4405 

Dated this 61h day of May 2014. 

Terri irk 

Office of Regional 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 of Dcn.ifll of 

Motion to Deem Allega.tlons Admitted and to Dismiss 

Appeal 

Fi\A Case No. 20i3NM090056 

PageS of5 

Dl\ VHJ F. SHA YNI:i, FAA ATTORNEY 

TEL: (425) 227·2165: FAX: (425) 227-1007 
05/05/2014 08:00 4252271007 ANH7 

FACSIMILE MESSAGE 

DAVID F. SHAYNE 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF REGIONAL COUNSEL 

ANM-7 

1601 LJND A VENUE S.W. 

RENTON, WASHINGTON 98057 

PAGE 01/05 

The information contained in this facsimile message is legally privileged and confidential 

information and .is intended only for the use of the individval named on this cover sheet 

If the reader of this message is not the intended recipient, you are hereby notified that any 

use, dissemination, distribution, or copy of this facsimile is strictly prohibited. If you 

have received this facsimile in error, please immediately notify us by telephone at 

425-227-2007. 

DATE: 

TO: 

FAX NO.: 

PHONE NO.: 

May 6,2014 

Hearing Docket Clerk 

(202) 493-5142 

RE: Joseph Email: 

Babrera 

Case No. 

2013NM090056 

NO. PAGES: 

FROM: 

FAX NO.: 

PHONE NO.: 

6 including cove1· 

David F. Shayne 

425~227 -2165 

425-227-2160 

COMPLAINANTS MOTION FOR RECONSIDERA TlON O.F DENIAL OF MOTION TO DEEM 

ALLEOA TIONS ADMITTED AND TO DIS MOOS APPEAL (W/0 EXHIBITS)