## SERVED: APRIL 7, 2014 --:;**~T** 

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In The Matter Of: 

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC ) ;· : ;:, .. - ) ) ) DocketNo. FAA-2013-0853 MARY E. BOCHIARDY Case No. 2011EA170066 Respondent )
ORDERDENYING THEFAA'S MOTION TO STRIKE RESPONDENT'S RESPONSE TO AGENCY'S MOTION TO DISMISS On January 17, 2014, the FAA served the Respondent with a Complaint. That same day, onJanuary 17, 2014, the FAA served the Respondent with a Motionto Dismiss Late-Filed Appeal ("Motionto Dismiss"). On January 24, 2014 the FAA filed both the Complaint and the Motion to Dismiss with the Office ofHearings ("OH"). On January 29, 2014 a Notice ofAssignment ofProceedings was filed, assigning this case to the undersigned. On February 20, 2014, the

### prose Respondent, Ms. Mary E. Bochiardy ("Respondent"), filed a Response to Agency's Motion to Dismiss Late-Filed Appeal ("Response to Motionto Dismiss"). This Response had been served onthe FAA nine days earlier, onFebruary 11, 2014. OnFebruary 24, 2014, the FAA filed the Agency's Motion to Strike Respondent's Response to Agency's Motion to Dismiss Late-Filed Appeal ("Motion"). This Motion had been served onthe Respondent onFebruary 21,2014, On March 4, 2014, the Respondent filed a Motion to Dismiss Agency's Motionto Strike Respondent's Response to Agency's Motion to Dismiss Late-Filed Appeal ("Response"). This Answerto Motionhad been served onthe FAA on February 25, 2014. 

### I. BriefDiscussion and Analysis The FAA'sMotion to Strike raises two issues: 1) Whether the Respondent's Response the FAA'sMotionto Dismiss was timely filed; and 2) Ifnot, whether the Respondent has shown good cause for the untimely filing. 14 C.F.R. 

### § 13.218(d) states in part, "Anyparty may file an answer ... not laterthan 10 days after service ofa written motion onthat party." 14 C.F.R. 

### § 13.211(e) states, "Whenever a party has a right or a duty to act orto make any response within a prescribed period after service

# ' by mail
... 5 days shall be added to the prescribedperiod." "Absent good cause, time periods underthe Rules ofPractice are to be strictly construed." 

### In re EvansAir Corporation, FAA2001-9000, Order ofCALJ at 4 (Aug. 28, 2001); (Mot. Strike 3.) The FAA served the Respondentby mail with its Motion to Dismiss onJanuary 17, 2014. Therefore, according to 14 C.P.R.§ 13.218(d), the Respondent's Response 1was due on orbefore February 3, 2014. 2 However, the Respondent did not serve her Response to the FAA's Motion to Dismiss until February 11, 2014. Therefore, the Respondent's Response was untimely filed. Having determined thatthe

### pro se Respondent's Response to the FAA's Motion to Dismiss was untimely filed, the next question is whether the Respondent has shown good cause for the untimeliness. The

### prose Respondent pointed out that the FAA's Motion to Dismiss and its Complaint were served inthe same package. The Motion to Dismiss did not contain any time period for response. However, the lastpage ofthe Complaint instructed the Respondent to serve a written answer to the Complaint withinthirty days afterthe date shown onthe Certificate ofService. As a result, the Respondent believed that she also had thirty days to file an answerto the Motionto Dismiss. (Response,4.) Good cause for late filings has been found when "respondents may have been confused by technical requirements ofthese proceedings." 

### In re Robert W Wiedle, FAA DocketNo. CP99WP0015, Order ofActing ChiefALJ (Jan. 6, 2000). Unlike the rules for answering a Complaint, the requirement of 14 C.P.R.§ 13.218(d) requiredthe Respondentto file a response to the FAA's Motion to Dismiss within 10 days ofservice. Itwas undisputedthatthe FAA tried to be helpful, and provided the Respondent with a printed copy ofthe Rules ofPractice when it served her with itsNotice ofProposed Civil Penalty (Mot. Strike 2, Ex. B). However, it is a rare

### pro se litigant who would knowthat suchrules, sent in a different mailing, would also be applicable to the January 17, 2017 materials. Reading and applying the law, and knowing the reach ofthe rules, is not an easily acquired mastery. It has provento be difficult at times even for the most seasoned litigator. Given the facts inthis case, and absent specific and clear instructions in the January 17, 2014 materials regarding different response times, it is understandable why the

### prose· Respondent presumedthat she had 30 days to respond to everything she received in one mailing.

1 Thepro se Respondent's Response is titled as a Motion to Dismiss, and seeksto "dismiss" the FAA's Motionto Dismiss. Underthe Rules ofPractice, 14 C.F.R. Part 13, subpart G, the Respondent's submission is more properly entitled as a Response to the FAA's Motion, since the Respondent is submitting an objection tothe FAA's written request for dismissal. 14 C.F.R. § 13.218(d) provides for the time period to file answers to motions.
2 Pursuant to 14 C.F.R. § 13.218(d), to calculate the time for a response, take the date ofservice (e.g., January 17, 2014), add 10 days (e.g., January 27, 2014), and then add an additional 5 days because service was by mail (e.g., February 1, 2014). However, February 1, 2014 falls on a Saturday, which is not a work day. Pursuantto 14 C.F.R. § 13.212(c), the time periodruns until the end ofthe next day that is not a Saturday, Sunday, or legal holiday. Therefore, the next work day was February 3, 2014. Page 2 of3

### II. Conclusion Based onthe foregoing, and pursuant to 14 C.F.R. §§ 13.205(a)(8), 13.218(f)(2)(i), 13.209, and after reviewing all relevant caselaw, regulations, statutory authority, and being fully advised;


### ITIS HEREBY ORDERED: 1) The FAA's Motionto Strike Respondent's Response to Agency's Motion to Dismiss Late-Filed Appeal is denied. 2) A separate Order will issue onthe FAA's Motion to Dismiss.

Attachment: Service List

Page 3 of3SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W10003

Ms. Judith L. Vaughan 

### Complainant's Counsel ONE COPY

Office ofthe Regional Counsel, Eastern Region Federal Aviation Administration 1Aviation Plaza Jamaica, NY 11434 TEL: 718-553-3255 fPC(: 718-995-5699 Ms. Mary E. Bochiardy 

### Respondent 1450 Sunset Point Road Clearwater, FL 33755-1536 TEL: 386-214-0414 FPC(: NOT PROVIDED
Judge J.E. Sullivan 

### US. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FPC(: 202-366-7536 FDMS No. FAA-2013-0853 (Civil Penalty Action)

3 Service was by U.S. MaiL For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.