U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.



### IntheMatterofMaryE. Bochiardy
DocketNo. FAA-2013-0853
AdministrativeLawJudgeJ.E. Sullivan 

# RECEIVED
JUL 

## -7 2014 HEARING DOCKET

AGENCY'S SUPPLEMENTALREPLYTO RESPONDENT'S SUPPLEMENTALMATERIAL FILINGBY REQUST OF THE U.S. DEPARTMENT OF TRANSPORTATION COMES NOW the Agency, by and through its designated and authorized representative, the Regional Counsel for the Eastern Region, and his designated and authorized representatives, and hereby files its supplemental reply to Respondent's supplemental material ftling. The relevant procedural background ofthis matteris detailedherein: 1. On February 12, 2013, a Notice ofProposed Civil Penalty was issued to Respondent. See Agency'sMotionto Strike (filedFebruary21, 2014) atExhibitB. 2. On or about June 10, 2013, Respondent retained the legal services ofexperienced aviation attorney Greg Reigel. SeeRespondent's Supplemental Filing atpage. 4. 3. After a July 2, 2013 informal conference was held, aFinalNotice ofProposed Civil Penalty
was issued to Respondent and her attorney on October 29, 2013. See Agency's Motion to Dismiss (filedJanuary 17, 2014) atExhibit C andExhibitD. 4. The Final Notice ofProposed Civil Penalty notified Respondentthat she had fifteen days to request ahearing. See id. 5. On or about November 18, 2013, Respondent received the Final Notice ofProposed Civil Penalty. See Agency's Motionto Dismiss (filedJanuary 17, 2014) atExhibitF. 6. On or about December 12, 2014, an Order Assessing Civil Penalty was issued to Respondent andherattorney. See id. AtExhibitD and ExhibitG. 7. Onor aboutDecember 17, 2014, Respondentreceivedthe Order. See id. atExhibitG.

18. The Order informed Respondent that she has exhausted her right to seek review ofthe validity or amountofthe debt. 9. On or about December 24, 2014, Respondent contacted Agency counsel and stated that her attorney "is now not representing me" and expressed confusion over why the lower fine (discussedin settlement)was notincorporatedinto the Order. See id. AtExhibitE, page 5. 10. On or about January 8, 2014, Respondent filed her request for a hearing with the DepartmentofTransportation. See id. AtExhibit I. 11. On or about January 17, 2014, the Agency filed its Complaint and Motion to Dismiss LateFiledAppeal. 12. OnFebruary 11,2014, RespondentfiledherResponse to the Agency's Motionto Dismiss. 13. OnFebruary21,2014,the Agency filed its Motionto StrikeRespondent'sResponse. 14. OnFebruary 25, 2014, RespondentfiledherMotionto Dismiss Agency'sMotionto Strike. 15. OnApril 7, 2014, an Orderdenyingthe FAA'sMotionto Strike was served. 16. On June 11, 2014, an Order Finding the Request for Hearing Untimely, Reserving the FAA's Motion to Dismiss and Setting Deadline for Filing Supplemental Material was served. 17. On or about June 21, 2014, Respondent filed her U.S. Department of Transportation Request for SupplementalMaterial (hereinafter "SupplementalFiling"). 1

I. Respondent Has NotPerfected Her Good Cause Argument. Inher Supplemental Materials filing, Respondent offers additional information to support her position that her attorney did not follow her instructions to file an appeal. In addition, she asserts that she was unable to timely manage this appeal for the following reasons: unspecified travel plans for Thanksgiving and Christmas holidays, her father's death on August 19th, her busy work schedule, an ongoing child support case, the loss ofher front tooth onNovember 22, 2013, a health scare regarding a breast mass, and researching her life insurance policy renewal. Respondent's claims, some ofwhich have been raised for the first time, do not establish good
cause. Moreover, many ofher arguments are unsupported and consequently, do little to perfect her good cause argument.

1 Respondent's unsigned certificate of service states it was filed on June 20, 2014, however, it was not mailed until June 21, 2014. See Exhibit A. 2Respondent was instructedto provide "full email correspondence available to support her good cause arguments asserting a miscommunication between herselfand Mr. Reigel regarding the filing ofan appeal." June 11, 2014 Order by Administrative Law Judge J. E. Sullivan at 12. Alternatively, she was ordered to "fully disclose the date(s) and specific content ofall missing communications, to perfect any good cause argument." Id. Respondent failed to do so. In her Supplemental Filing, the following inconsistencies support the position that Respondent did not file complete email correspondence nor fully disclose the date(s) and specific content ofall missing communications:

1. Respondent provides no credible information about how it was communicated to her by Attorney Reigel thathe no longer represented her. Respondent stated that she did not learn about attorney Reigel's position to no longer represent her until December 30, 2013. See Supplemental Filing at 4. Previously, Respondent notified FAA counsel that she was no longer represented by Attorney Reigel as early as December 24, 2013. See Agency's Motion to Dismiss at Exhibit E at page 5. Respondent's statement in the Supplemental Filing is not supported by the evidence.
11. Respondent's "phone logs" are incomplete, not authenticated, and inherently unreliable. Respondent does not state how she created these "phone logs", nor has she provided any reliable or trustworthy documentary evidence (i.e., phone bills) to support her claims. As aresult, her SupplementalFiling is incomplete. In addition, Respondent asserts that she uses her office land line "often", however, claims she cannot access these phone logs. See Supplemental Filing at 6. Despite this representation, she lists four phone calls made from her office land line inher memorandum, one ofwhich allegedly occurred onNovember 22, 2013

- the day Respondent claims she told her attorneyto file an appeal. See id. at 6-7. Consequently, her reliance upon these phone calls, specifically, made from her office landline, are misplaced, incomplete, andunreliable. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief formed after an inquiry reasonable 3under the circumstances,

... the allegations and other factual contentions have evidentiary support, or ifspecifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation
or discovery. F.R.C.P. Rule ll(b). This rule also provides that "signature by the attorney or party constitutes certification by the signer that the document is grounded in fact and brought in good faith." Porter v. City ofDavis Police Department, 2007 WL 4463344 at 9 (E.D. Cal). As Respondent has not substantiated her claims through evidentiary proofand has indicated that, in some cases, she is unlikely to be able to provide suchproof, these references shouldnotbereliedupon2

111. Respondent previously represented that the majority ofher conununications with her attorney were by email. In her February 11, 2014 Response to Agency's Motion to Dismiss Late-Filed Appeal, Respondent did not mention the significance of any telephone conversations with her attorney. To the contrary, she represented that the majority of her conununications with her attorney, including her direction to file an appeal, were by email. See Respondent's Response to Agency's Motion to Dismiss at page 2. In light of her previous representationto the court, herreliance upon unsupported telephone conversations withAttorneyReigel, withoutmore, atthisjuncture, is not credible. Inher Supplemental Filing, Respondent asserts, for the first time, that she had numerous telephone conversations with her attorney where she expressed her desire, repeatedly, to file an appeal. The dates oftelephone conununications, email, or written correspondence are typically reflected on private attorney's billing statements sent to clients. Notably, Respondent did not file any such billing statements3received from Attorney Reigel. Without anybilling statements, telephone bills, or an affidavit from Attorney Reigel in support of her claims,

2 For example, Respondent states she had a six minute phone conversation with Attorney Reigel (or someone in his office) on November 13, 2013. See Supplemental Filing at 6. However, an email from Attorney Reigel to Respondent states that he will be out of the office at depositions on November 13, 2013. See Supplemental Filing at 12 (November 11, 2013 email).

3 Respondent referenced billing issues with Attorney Reigel repeatedly in her Supplemental Filing. She did not provide a single billing statement. 4these references are self-serving and inherently unreliable. "[U]nsworn statements in a memorandum of law are not evidence." Peterson v. Svracuse Police Department, 467 Fed. Appx. 31 2012 WL 858576 at 34 (C.A.2 (N.Y.))) citing Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir.2009). See also In the Matter of Larry's Flying Service. Inc., FAA Order No. 98-4 at 2 (March 12, 1998)("Larry's counsel has failed to support his claim of confusion with an affidavit or some other type of evidence. For these reasons, any confusion on counsel'spart was unwarranted and cannot be considered good cause.") 1v. The emails attached to Respondent's Supplemental Filing are not complete. The email dated November 5, 2013 from Attorney Reigel to Respondent is cut-offand not complete. For example, the remainder ofAttorney Reigel's signature line is missing. Most importantly, however, Attorney Reigel states in this email that it
was "probably easier to discuss and answer your questions on the phone." He then asks her to call him. There is no email from Respondent detailing the questions she wanted answersto4 Additionally, inher SupplementalFiling, Respondent indicatedthatduring
a telephone conversation she had onNovember 22, 2013, Attorney Reigel stated that "he had replied to my email." Respondent did not supply his response to her email. Notably, November 22, 2013 is the date that Respondent emailed Attorney Reigel with instructions to appeal. Her email was sent at 2:39p.m. See Agency's Motion to Dismiss at Exhibit E at 5-6. Respondent's alleged phone call with Attorney Reigel occurred at approximately 3:30p.m. See Supplemental Filing at 7. Therefore, it is presumed that Attorney Reigel replied to her email sometime between 2:39 p.m. and 3:30 p.m. It is unknown what was communicated to Respondentinthat email.
v. Respondent does not provide any telephone or email communications after she learned that Attorney Reigel did not file an appeal. Previously, Respondent

4 It should be noted that this email occurred six days after the Final Notice of Proposed Civil Penalty was mailed to Respondent and her attorney. The Agency has previously argued that Respondent's attorney received the Final Notice on or before November 5, 2013

- the same day this email was sent to Respondent by her attorney. See Agency's Motion to Dismiss at 1.
5claims she learned that Attorney Reigel did not file an appeal, for the first time,
on December 24, 2013. See supra at 3. It defies logic that Respondent did not send to, or receive from, Attorney Reigel any written, electronic, or verbal communication about his failure to file an appeal. There is no email from Attorney Reigel acknowledging her claims that he was instructed to file an appeal. To the contrary, Attorney Reigel's December 24, 2013 email asserts that he was instructed byRespondentthat she would file an appeal onher own or use a local attorney. See Agency's Motion to Dismiss, Exhibit Eat 5. Itis difficult to theorize how he could have misconstrued her instructions, had she repeated them to him as often and as clearly as she claims she did in her Supplemental Filing. Without an affidavit from Attorney Reigel, or complete emails, written or other communications, Respondent has notperfectedher good cause argument.5 v1. Respondent offers no evidence to justify her inaction for filing an appeal from the period of December 17, 2013 through January 8, 2014. Respondent has not provided reliable, credible evidence why she did not file an appeal or take other action once she received the Order Assessing Civil Penalty on December 17, 2013. Assuming, without conceding, Respondent'spositionthat despite receiving the Order Assessing Civil Penalty on December 17, 2013, shejustlearned for the first time that no appeal was filed by her attorney on December 24, 2013, Respondent still offers no documentary or persuasive evidence supporting her continued delay in filing an appeal. The holiday season was ending, Respondent's self-identified work deadline ended on 12/15/13 (2 days before she received the Order), her tooth issue allegedly occurred in late November6

, her child support court case response was allegedly due on 11125/13 (no other court dates or deadlines specified) and Respondent did not identify any doctor's appointments or insurance appointments she had during this time period relating to her health scare. While cognizant that the holidays were presumably stressful

5 Notably, Respondent does not state that she has filed any ineffective assistance of counsel claim, filed any official complaint, or taken any other action based upon Attorney Reigel's alleged mishandling of her appeal.

6 Respondent does not state that she was still dealing with her tooth issue during this time period. 6with the loss ofher father who passed four months previously, it cannot be said that this prevented her from managing her affairs timely. Respondent's own Supplemental Filing indicates that during this time period, and earlier, she managed to work a very stressful job for a high-profile company, under tight deadlines while, presumably, avoiding any penalties for late filing associated with herjob. Itis unexplained why Respondent could not apply the same diligence in her personal legal affairs during this time period under the same constraints and pressures - especially since the tight deadlines identified in her Supplemental Filinghad already expired. Additionally, as Respondent did not provide any further details or corroborating evidence regarding the personal issues mentioned (travel, court, medical, other work issues) she has not fulfilled herresponsibility underthe Order to provide "specificity about such factors." See June 11,2014 Order at 12.
Ultimately, the majority ofRespondent's arguments are based upon uncorroborated and
unsworn statements. In addition, the limited email documents provided are conflicting with other statements and evidence and raise more questions, rather than answers- specifically, when the emails reference other communications that Respondent has not disclosed. "Although pro
se pleadings are heldto less stringent standards thanthose drafted by an attorney, aparty'spro se status does not exempt him from compliance with procedural or substantive law." In the Matter ofFritz Haiss, FAA-2003-15767 (2006). "Absent good cause, time periods under the Rules ofPractice are to be strictly construed." In the Matter ofEvans Air Corporation, FAA-2001- 9000 (2001). "[G]ood cause has not been found to exist and civil penalties have been assessed where a respondent neglected to explain anuntimely filing." Id. Respondent has been provided withmultiple opportunities to show good cause but failed to do so. Respondent's appeal mustbe dismissed. See In the Matter of Canuck Industries, Inc., FAA-2000-7726 (2002). The Department has long held that "[p]rocedural rules must be enforced in a non-arbitrary manner to
ensure the integrity ofthe civil penaltyprocess, even where this results in severe consequences." In re Jimmy Lee Harkins, CP93AL214 (1994). See also In the Matter of Panalpina, Inc., CP06S00029 (2006).

7WHEREFORE, for all of the above reasons and for the reasons previously set forth in the Agency's January 17, 2014 motion to dismiss, the Agency respectfully requests that the Agency'smotionto dismiss late-filed appeal be granted.

Respectfully submitted, Alfred R. Johnson, Jr. Regional Counsel

By:

8CERTIFICATE OF SERVICE

I hereby certifythat onthis , 

## 3rd. day ofJuly, 2014, copies ofthe foregoing Agency's Supplemental Replyhas been served uponthe following viaFederal Express:

Dated:

### ~J_U_L

### _-_3

### _20_14_ Hearing Docket AttentionHearing Docket Clerk Federal AviationAdministration 600 Independence Avenue, SW WashingtonDC 20591 Wilbur Wright Building-Suite 2Wl000 Washington, DC 20591 Hon. J.E. Sullivan Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJerseyAvenue, S.E. (Ell-310) Washington, DC 20590 Ms. MaryE. Bochiardy 1450 SunsetPointBlvd. Clearwater, Florida 33755

s Paralegal pecialist Federal AviationAdministration Office ofRegional Counsel 1AviationPlaza Jamaica, NY 11434

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