U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of Mary E. Bochiardy 

Docket No. F AA-2013-0853 

Administrative Law Judge J.E. Sullivan 

RECEIVED 

JUL -7 2014 

HEARING DOCKET 

AGENCY'S SUPPLEMENTAL REPLY TO RESPONDENT'S SUPPLEMENTAL MATERIAL 

FILING BY 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 of this matter is detailed herein: 

1. On February 12, 2013, a Notice of Proposed Civil Penalty was issued to Respondent. See 

Agency's Motion to Strike (filed February 21, 2014) at Exhibit B. 

2. On or about June 10, 2013, Respondent retained the legal services of experienced aviation 

attorney Greg Reigel. See Respondent's Supplemental Filing at page. 4. 

3. After a July 2, 2013 informal conference was held, a Final Notice of Proposed Civil Penalty 

was issued to Respondent and her attorney on October 29, 2013. See Agency's Motion to 

Dismiss (filed January 17, 2014) at Exhibit C and Exhibit D. 

4. The Final Notice of Proposed Civil Penalty notified Respondent that she had fifteen days to 

request a hearing. See id. 

5. On or about November 18, 2013, Respondent received the Final Notice of Proposed Civil 

Penalty. See Agency's Motion to Dismiss (filed January 17, 2014) at Exhibit F. 

6. On or about December 12, 2014, an Order Assessing Civil Penalty was issued to 

Respondent and her attorney. See id. At Exhibit D and Exhibit G. 

7. On or about December 17, 2014, Respondent received the Order. See id. at Exhibit G. 

1 
8. The Order informed Respondent that she has exhausted her right to seek review of the 

validity or amount of the 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 

(discussed in settlement) was not incorporated into the Order. See id. At Exhibit E, page 5. 

10. On or about January 8, 2014, Respondent filed her request for a hearing with the 

Department of Transportation. See id. At Exhibit I. 

11. On or about January 17, 2014, the Agency filed its Complaint and Motion to Dismiss LateFiled Appeal. 

12. On February 11,2014, Respondent filed her Response to the Agency's Motion to Dismiss. 

13. On February 21,2014, the Agency filed its Motion to Strike Respondent's Response. 

14. On February 25, 2014, Respondent filed her Motion to Dismiss Agency's Motion to Strike. 

15. On April 7, 2014, an Order denying the FAA's Motion to 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 Supplemental Material (hereinafter "Supplemental Filing"). 1 

I. Respondent Has Not Perfected Her Good Cause Argument. 

In her 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 of her front tooth on November 22, 

2013, a health scare regarding a breast mass, and researching her life insurance policy renewal. 

Respondent's claims, some of which have been raised for the first time, do not establish good 

cause. Moreover, many of her 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. 

2 
Respondent was instructed to provide "full email correspondence available to support her 

good cause arguments asserting a miscommunication between herself and Mr. Reigel regarding 

the filing of an 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 of all 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 of all missing communications: 

1. Respondent provides no credible information about how it was communicated to 

her by Attorney Reigel that he 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 a result, her Supplemental Filing 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 in her memorandum, one of which allegedly occurred on November 22, 2013 

- the day Respondent claims she told her attorney to file an appeal. See id. at 6-7. 

Consequently, her reliance upon these phone calls, specifically, made from her 

office landline, are misplaced, incomplete, and unreliable. 

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 

3 
under the circumstances, ... the allegations and other factual contentions 

have evidentiary support, or if specifically 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 of Davis Police Department, 2007 WL 4463344 at 9 

(E.D. Cal). As Respondent has not substantiated her claims through evidentiary 

proof and has indicated that, in some cases, she is unlikely to be able to provide 

such proof, these references should not be relied upon2 

111. Respondent previously represented that the majority of her 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 

representation to the court, her reliance upon unsupported telephone conversations 

with Attorney Reigel, without more, at this juncture, is not credible. 

In her 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 of telephone 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 statements3 received from Attorney Reigel. Without any billing 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. 

4 
these 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's part 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-off and 

not complete. For example, the remainder of Attorney 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 answers to4 

Additionally, in her Supplemental Filing, Respondent indicated that during 

a telephone conversation she had on November 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 

Respondent in that 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. 

5 
claims 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 by Respondent that she would file an appeal on her own or use a 

local attorney. See Agency's Motion to Dismiss, Exhibit Eat 5. It is 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 not perfected her 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's position that despite receiving 

the Order Assessing Civil Penalty on December 17, 2013, she just learned 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. 

6 
with the loss of her 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 

her job. It is 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 

Filing had 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 her responsibility under the Order 

to provide "specificity about such factors." See June 11,2014 Order at 12. 

Ultimately, the majority of Respondent'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 held to less stringent standards than those drafted by an attorney, a party's pro se 

status does not exempt him from compliance with procedural or substantive law." In the Matter 

of Fritz Haiss, F AA-2003-15767 (2006). "Absent good cause, time periods under the Rules 

of Practice are to be strictly construed." In the Matter of Evans 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 an untimely filing." I d. Respondent has been provided 

with multiple opportunities to show good cause but failed to do so. Respondent's appeal must be 

dismissed. See In the Matter of Canuck Industries, Inc., F AA-2000-7726 (2002). The 

Department has long held that "[p ]rocedural rules must be enforced in a non-arbitrary manner to 

ensure the integrity of the civil penalty process, even where this results in severe consequences." 

In re Jimmy Lee Harkins, CP93AL214 (1994). See also In the Matter of Panalpina, Inc., 

CP06S00029 (2006). 

7 
WHEREFORE, 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's motion to dismiss late-filed appeal be granted. 

Respectfully submitted, 

Alfred R. Johnson, Jr. 

Regional Counsel 

By: 

8 
CERTIFICATE OF SERVICE 

I hereby certify that on this , 3 rd. day of July, 2014, copies of the foregoing 

Agency's Supplemental Reply has been served upon the following via Federal Express: 

Dated: ~J_U_L _-_3 _20_14_ 

Hearing Docket 

Attention Hearing Docket Clerk 

Federal Aviation Administration 

600 Independence Avenue, SW 

Washington DC 20591 

Wilbur Wright Building-Suite 2Wl000 

Washington, DC 20591 

Hon. J.E. Sullivan 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

Ms. Mary E. Bochiardy 

1450 Sunset Point Blvd. 

Clearwater, Florida 33755 

s 

Paralegal pecialist 

Federal Aviation Administration 

Office of Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

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