### UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASIDNGTON, DC In the Matter of: JOSEPH D. BARBERA FAA OrderNo. 2015-4 FDMS No. FAA-2013-1083 1

Served: September 9, 2015 

### DECISION AND ORDER2 I. 

### Introduction RespondentJosephD. Barbera ("Respondent") has appealed from the defaultjudgment issuedbyAdministrative LawJudge ("ALI") Richard C. Goodwin against Respondent on October 15,2014. The defaultjudgmentwas inthe amount of$1,100, the amount sought inthe complaint. 3 This decision affirms the ALI's defaultjudgment onthe ground that Respondent has failed to showgoodcause for his failure to file a timely answer to the complaint. 

### II. Case History OnMarch 6, 2014, ComplainantFederal AviationAdministration ("Complainant") filed the complaint inthis case. The complaint stated as follows:

1 Generally, materials filed in the FAA Hearing Docket (except for materials filed in security cases) are also available for viewing at http://www.regulations.gov. 14 C.F.R. § 13.210(e)(l). 2 The Administrator's civil penalty decisions, along with indexes ofthe decisions, the rules of practice, and other infonnation, are available on the Internet atthe following address: www.Jaa.gov/about/office
_orglheadquarters _offices/age/pol_adjudication/AGC400/Civil_Penalty/. See 14 C.F.R. § 13.210(e)(2). In addition, Thomson Reuters/West Publishing publishes Federal Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw (FTRANFAA database). For additional information, see the Web site.
3 A copy ofthe ALJ's written order entering defaultjudgment, served on October 15,2014, is attached.• On or about June 22,2013, Joseph Barbera operated an ultralight vehicle at an altitude higher than 18,000 feet Mean Sea Level.
• As a result ofthe above, Joseph Barbera operated an ultralight in Class A airspace4 without obtainingprior authorization from the ATC facility having jurisdiction overthat airspace.
• As a result ofthe above, Joseph Barbera operated an ultralight vehicle in a mannerthat created a hazard to otherpersons or property. The complaintfurther stated as follows:
• By reason ofthe foregoing facts and circumstances, Joseph Barbera violatedthe following sections ofthe Federal AviationRegulations (14 C.F.R.):
o Section 103.9, in that [JosephBarbera] operated an ultralight vehicle in a manner that created a hazard to otherpersons orproperty.
o Section I03.17, in that [Joseph Barbera] operated anultralightvehicle within Class A airspace without obtaining prior authorization from the ATC facility havingjurisdiction over that airspace.
• In accordance with
... [49 U.S.C. §§ 4630l(a) and (d)], Joseph Barbera is liable for a civil penalty notto exceed $11,000 for each ofthe violations noted.
• Under the facts and circumstances ofthis case, a civil penalty of$1,100 is appropriate. The complaint notified Respondent ofthe requirementto file a timely answer to the complaint, and to show good cause for any failure to file the answer on time, as follows: ANSWER In accordance with Section 13.209 ofthe Federal Aviation Regulations, Joseph Barberamust answer this Complaint not later thanthirty (30) days from the time it is served on him. Failure to file an answerwithin thirty (30) days without good cause shall be deemed an admission ofthe truth ofeach allegation contained in the Complaint [14 C.F.R. § 13.209(f)].

4 "Class A airspace is generally the airspace from 18,000 feet mean sea level (MSL) up to and including flight level (FL) 600, including the airspace overlyingthe waters within 12 nautical miles (NM) ofthe coast ofthe 48 contiguous states and Alaska." Pilot's Handbook ofAeronautical Knowledge, FAA-H-8083-25A, at 14-2 (2008). See 14 C.F.R. §§ 71.31 (entitled "Class A airspace") and 71.33 (entitled "Class A airspace areas").
2OnMarch 25, 2014, the ALJ served a procedural order ontheparties in which he advised Respondent about the need to file a timely answer as follows: [T]he Respondent mustfile a written Answer or motion withinthirty (30) days after service ofthe Complaint (14 C.F.R. § 13.209(a))
.... [A] general denial is deemed a failure to file an Answer(§ 13.209(e))
.... [F]ailure to file an Answer without good cause is deemed an admission ofeach allegation inthe Complaint (§ 13.209(£)). Respondent had 35 days from the service date ofthe complaint, oruntil April I0, 2014, to file his answer under 14 C.F.R. §§ 13.209(ai and 13.2ll(e)6 OnApril 18, 2014, Complainantfiled a motionto deem allegations admitted and to dismiss appeal based on Respondent's failure to file an answer. Respondent filed a memorandum dated Aprill9, 2014, which denied the complaint. Respondent filed a response dated April 28, 2014, to Complainant's motion to deem allegations admitted and to dismiss appeal. Respondent wrote that he "had no intentions ofletting this matterrest or admit guiltby non-response." Respondent saidthat he had interpreted the ALJ's procedural order ofMarch 25, 2014, to require an answer within 30 days ofthe procedural order rather than within 30 days from the complaint. OnMay 5, 2014, the ALJ issued an order entitled, "OrderDenying Agency Motion for Decision," in which he denied Complainant's motionto deem allegations admitted and to dismiss appeal. The ALJ explainedthat after Complainant moved to deem the allegations ofthe complaint admitted, Respondent filed an answer and other documents.

5 14 C.F.R. § 13.209(a) provides in pertinent part: "A respondent shall file a written answer to the complaint, or may file a written motion pursuantto§ 13.208(d) or§ 13.218(f)(l-4) ofthis subpart instead offiling an answer, not laterthan 30 days after service ofthe complaint."
6 14 C.F.R. § 13 .211(e), the "mailingrule," provides: "Whenever a party has a right or a duty to act or to make any response within a prescribed period after service by mail, or on a date certain after service by mail, 5 days shall be added to the prescribed period."

3On May 6, 2014, Complainant filed a motion for reconsideration ofits motion to deem allegations admitted and to dismiss appeal. Complainant arguedthat the late answer should not be accepted unless Respondent could demonstrate good cause for the lateness. 

### In the same document, Complainant included a motion for decision or motion for summaryjudgment. Inthis latter motion, Complainant argued that in Respondent's answer, he did not actually deny any of the allegations in the complaint. Instead, Respondent's only response was, "I seriously question whether there is ample evidence to prove the flight violated the 18,000 ft. boundary." According to Complainant, this statement was not a denial, but was a tacit admission ofthe allegation, and therefore Respondenthad admitted the allegations set forth in the complaint. Further, Complainant argued, ifthe above-quoted language in Respondent's answer were construed to be a denial, Respondent was wrong about the lack ofevidence. To showthat there
was evidence, Complainant submitted two exhibits- one in which Respondent admitted that he committed the violation, and another containing data showing that Respondent's ultralight aircraft flew over 20,000 feet. According to Complainant, Respondent had not and could not deny the allegations, and Respondent's admissions shouldbe conclusive evidence thatthe violations occurred and required no corroboration. Respondent sent a letter to the ALJ on or about June 4, 2014. 7 This letter was a response to Complainant's motion for decision or motion for summaryjudgment ofMay 6, 2014, but it
was untimely. The Rules ofPractice provide that, "A party may file an answer, with affidavits or other evidence in support ofthe answer, not later than 10 days after service ofa written motion
on that party." 14 C.F.R. § 13.218(d). The "mailingrule" provides an additional5 days: "Whenever a party has a right or a duty to act or to make any response within a prescribedperiod
7 The Hearing Docket never received this letter. 

### 4after service by mail, or on a date certain after service bymail, 5 days shall be addedto the prescribed period." 14 C.P.R. 

### § 13.2ll(e). Respondent's deadline for filing a response to the motion for decision was 15 days after May 6, 2014, or May 21,2014. Respondent, however, did not file a response until on or about June 4, 2014. On June 12, 2014, Complainant filed a motionto strike Respondent's response, dated on or about June 4, 2014, to Complainant's motion for summaryjudgment. Complainant argued that Respondent was late inresponding to Complainant's motion for reconsideration and summaryjudgment and as with the late answer, Respondent had not shown good cause for the lateness. Complainant further argued in its motion to strike that Respondent should be required to show good cause why he failed to answer the complaint or in the alternative, the ALJ should grant Complainant's summaryjudgment and order Respondentto comply with Complainant's Final Notice ofProposed Civil Penalty as the final order in this case. On July I0, 2014, the ALI issued an order regarding Complainant's motions in which he stated that Respondent's communication dated on or about June 4, 2014, had not beenpresented to him. The ALJ warned Respondentthat ifhe failed to comply with the rules, then he couldbe sanctioned in any ofthe following ways- allegations in the complaint could be admitted, Respondent could be precluded from introducing evidence at the hearing otherthan his own testimony, Respondent's request for hearing couldbe dismissed, and a defaultjudgment could be entered against Respondent. On September 9, 2014, the ALI issued an Order to Show Cause in which he stated that based on his review ofdocuments in this case entered in the Federal Docket Management System ("FDMS") and available inregulations.gov:

... Barberahas failed to Answerthe Complaint; failed to respond to our Procedural Order served March 25, 2014; failed to Answer FAA's Motion to


### 5Deem Allegations Admitted and to Dismiss Appeal dated 18 Apri12014; failed to answer FAA's Motion for Reconsideration ofDenial ofMotionto Deem Allegations Admitted and to Dismiss Appeal, Motionfor Decision (Summary Judgment) and Motion to Extend Discovery Deadline dated 6 May 2014; failed to respond to our Amended Procedural Order served May 7, 2014; failed to answer FAA's Motionto Strike Response to Motion for Summary Judgment and Response to Respondent's Motion to Compel Discover[y] and Motion to Extend Discovery Deadline dated 12 June 2014; nor Answered FAA's Motionfor Clarification to the ALJ's Order on Complainant's Motions dated 15 July 2014. In this ShowCause Order, the ALJ ordered as follows: 1. That on orbefore October 1, 2014, Barbera shall: a. Answer FAA's Complaint; and b. File a responses (sic) to all FAA's Motions; and c. ... [F]ully and completely comply with all discovery requests ofthe FAA. 2. Further, Barbera shall answer this Order stating why the relief requested inthe Agency's Motions to Strike Response to Motion for SummaryJudgment should notbe granted; and 3. Absent full and complete responses to paragraphs 1and 2, Barberamay be sanctionedincluding, butnot limited to, allegations inthe Complaintmaybe deemed admitted; and/or Barberamaybe precluded from introducing any evidence atthe hearing otherthanhis own testimony; and/or Barbera's Request for Hearing maybe dismissed; and/or a DefaultJudgment may be entered against Barberain the full amount ofthe fine requested bythe Agency in its Complaint. Onor about September26, 2014, Respondent filed the following documents: an answer to the complaint, a response to Complainant's motion to strike response to motion for summary judgment andresponse to Respondent's motionto compel discovery, motion for reconsideration ofdenial ofmotion to deem allegations admitted and to dismiss appeal, a response to Complainant's motion for decision, a response to Complainant's motionto extend discovery deadline, a response to Complainant'smotionto deem allegations admitted andto dismiss appeal, and a response to the ALJ's order to show cause. The service lists for these documents indicate that they were sentto the ALJ, the Hearing Docket, and Complainant's counsel.

6On October 2, 2014, Complainant filed a replyto Respondent's submissions. In this reply, Complainant argued that Respondent's appeal should be dismissed due to Respondent's failure to file a timely answer. Further, Complainant argued, even ifthere was good cause for accepting the untimely answer, Complainant's motion for decision or summaryjudgment should be granted because the answer filed by Respondent in April 2014 did not deny the allegation that he entered Class A airspace without an ATC clearance. On October 15,2014,the ALJ issued an order entering defaultjudgment against Respondent in which the ALJ found that Respondent failed to answer the complaint, the AU's procedural order, Complainant's motions, and the ALI's show cause order. The ALI dismissed Respondent's request for hearing withprejudice, deemed all the allegations in the complaint admitted, granted Complainant's motion forjudgment on the pleadings, and assessed a civil penalty of$1,I00 against Respondent, as requested in the complaint. On October 22, 2014, Respondent sent the ALJ a response to the order entering default judgmentin which Respondent asserted that he complied fully with the ALI's order to show
cause. The ALI, however, having entered the defaultjudgment, no longer hadjurisdiction. As a result, on November 25, 2014, the ALIreferred Respondent's response to the ALI's orderto show cause to the FAA decisionmaker. On January 7, 2015, the FAA decisionmaker construed Respondent's response to the ALJ's order entering defaultjudgmentas a notice ofappeal and set a briefing schedule. The appeal is now fully briefed and ready for decision. III. Discussion The issue in this case is whether Respondent has good cause for his failure to file an answer within the 30-daytime period set by Section 13.209(a) ofthe Rules ofPractice

7(14 C.P.R.§ 13.209(a)). Cornwall, FAA OrderNo. 1992-47 at 5 (July 22, 1992); Safety Equipment andSign, FAA OrderNo. 1992-76 at 4 (December 21, 1992). Respondent, like Complainant, mustknow and meet procedural deadlines. Safety Equipment & Supply, FAA OrderNo. 1992-76 at 4 (December 21, 1992). Respondent in this case isprose, butprose respondents too must follow the Rules ofPractice. ConquestHelicopters, FAA OrderNo. 1995- 25 at 6 n.6 (December 19, 1995); GlobalPeace Initiative, FAA OrderNo. 2008-8 at 5-6 (August 21, 2008). Section 13.209(a) (14 C.P.R.§ 13.209(a)) sets a 30-day deadline for filing the answer to the complaint, and Section 13.209(f) (14 C.P.R.§ 13.209(f)) states that withoutgoodcause, a person's failure to file an answer shallbe deemed an admission ofthe truth ofeach allegation contained inthe complaint. Atlantic WorldAirways, FAA OrderNo. 1995-28 at 3-4 (December 19, 1995) (emphasis in the original). The FAA decisionmaker will only excuse a late answer if respondent shows good cause for the delay. AirFlorida Express, FAA OrderNo. 2002-9 at 2 (April 16, 2002), citing Stevenson, FAA Order No. 2000-29 (December 29, 2000);Atlantic WorldAirways, FAA OrderNo. 1995-28 at 3-4 (December 19, 1995); Safety Equipment & Supply, FAA OrderNo. 1992-76 at 4 (December 21, 1992). A showing ofgood cause is mandatory. GlobalPeace Initiative, FAA OrderNo. 2008-8 at 5 (August 21, 2008), quoting Atlantic WorldAirways, FAA Order No. 1995-28 at 3-4 (December 19, 1995). Under Sections 13.209(a)8 and l3.211(e) ofthe Rules ofPractice (14 C.P.R.§§ 13.209 and l3.211(e)) ,9 Barberahad 30 days (plus 5 days) from the service date ofthe complaint, or

8 14 C.F.R. § 13.209(a) provides in pertinent part: "A respondent shall file a written answer to the complaint, or may file a written motion pursuant to § 13.208(d) or § 13.218(f)(l--4) ofthis subpmi instead offiling an answer, not later than 30 days after service ofthe complaint." 9 14 C.F.R. § 13.2ll(e), the "mailingrule," provides: "Whenevera party has a right or a duty to act or to make any response within a prescribed period after service by mail, or on a date certain after service by mail, 5 days shall be added to the prescribed period."

8until April 10, 2014, to file his answer, but Respondent failed to file his answerbythe deadline. Complainant asserts that a letter from Respondent that was postmarked 13 days after the deadline, onApril23, 2014, canbe construed as an answer. 10 Also, Respondent filed an answer to the complaint on or about September 26, 2014, inresponse to the ALJ's orderto show cause. In an apparent attempt to show good cause for his lateness, Respondent has stated that he interpreted the ALJ'sprocedural order ofMarch 25, 2014, to require an answer from him within 30 days oftheprocedural order, which was incorrect. Rather, Respondent was required to
answer the complaint within 30 days ofservice ofthe complaint. The complaint contained an explicit statement ofthe requirement to file an answer within 30 days ofservice ofthe complaint. Likewise, the ALJ issued aprocedural order in which he specificallyreminded Respondent that he must file a written answer or motion within 30 days ofservice ofthe complaint. As in the Diamondcase, "Respondenthad the benefit oftwo specific written reminders to file the answer by the deadline, but still failed to do so. Good cause has not been shown." Diamond, FAA OrderNo. 1995-10 at 3 (May 10, 1995). Respondent has not raised any other matter that could constitute good cause. For example, neither the ALJ nor agency counsel said or did anything that would mislead a reasonable person about the deadline. Larry'sFlyingService, FAA Order No. 1998-4 at 2-3 (March 12, 1998). In Warbelow 'sAir Ventures, FAA OrderNo. 1999-4 at 4-5 (July I, 1999), the Administrator found a marginal showing ofgood cause for a late-filed document, but Warbelow's is distinguishable in that the respondent in Warbelow 's took steps to protect against default, which did not happen here.

1

# °

Complainant makes this assertion in its motion for reconsideration. 9The National Transportation Safety Board (NTSB) has held that unfounded mistakes regarding the calculation ofa deadline do not constitute good cause for failing to submit a timely filing. 

### Administrator v. Rice, NTSB OrderNo. EA-5667 at 2 n.8 (2013), citing

### Administrator v. Zaidi, NTSB Order No. EA-5469 (2009), inturn citing

### Administrator v. Dirksen, NTSB Order No. EA-4699 (1998);

### Administrator v. Shumate, NTSB OrderNo. EA-5555 at 5 (2010); 

### Application of Riggsfor anAwardof AttorneyFees andExpenses, NTSB Order No. EA-5312 at 1 (2007); 

### Administratorv. Slay & 

### Knowles, NTSB OrderNo. EA-3956 (1993). The FAA decisionmaker is not boundby NTSB decisions, but may follow them ifthey are persuasive. 

### Gatewood, FAA Order No. 2000-1 at 20 (February 3, 2000); 

### Westair CommuterAirlines, FAA OrderNo. 1993-18 at 6 (June 10, 1993); 

### Richardson & 

### Shimp, FAA OrderNo. 1992-49 at 9n.13 (July 22, 1992). In the instant case, Respondent made an unfounded mistake regarding the deadline for the answer, and unfounded mistakes do not constitute good cause. 

### IV. Conclusion Because Respondent has failed to show good cause for the untimeliness ofhis answers to the complaint, this decision affirms the ALJ's defaultjudgment, in penalty.

10l**~** : ' 

### SERVED: October 15, 2014 _·

## .... ·.**~:·** -, . U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC
IN THE MATTER OF JOSEPH D
..BARBERA FAA DOCKET NO. [TO BE ASSIGNED] (Civil Penalty Action) FDMS NO. FAA 2013- 1083
ORDERENTERING DEFAULT JUDGMENT AGAINST RESPONDENT The Docket Management System (hereinafter "OMS") reflects the following pleadings inthis case: Joseph D. Barbera (hereinafter "Barbera") filed a Request for Hearing dated 24 February 2014. The Federal Aviation Administration (hereinafter "FAA") filed a Complaint dated 6 March 2014. Barberafiled a Letter dated I0March 2014 outlining dates ofavailability. We served our Procedural Order on March 25,2014. FAA filed a Motion to Deem Allegations Admitted and to Dismiss Appeal on 18 April 2014. We served an Order DenyingAgency Motion for Decision on May 5, 2014.FAA filed aMotion for Reconsideration ofDenial ofMotionto Deem Allegations Admitted and to Dismiss Appeal dated 6 May 2014. Within that motion is a Motion for Decision (Summary Judgment) and Motion to Extend Discovery Deadline. We served an Amended Procedural Order on May 7, 2014. FAA filed Complainant's Motion to Strike Response to Motion for Summary Judgment and Response to Respondent's Motion to Compel Discovery dated 12 June 2014. Neither of Barbera's pleadings referred to in FAA's 12 June 2014 motion is in DMS nor were they served on the court. We served our Order on Complainant's Motions on July 10, 2014 extending discovery until October 1, 2014. FAA filed Complainant's Motion for Clarification to the ALJ's 'Orderon Complainant's Motions' dated 15 July 2014. According to pleadings filed in DMS, Barberahas failed to Answer the Complaint; failed to respond to our Procedural Order served March 25, 2014; failed to Answer FAA'sMotionto Deem Allegations Admitted and to Dismiss Appeal dated 18 April2014; failed to Answer FAA'sMotion for Reconsideration ofDenial ofMotion to Deem Allegations Admitted and to Dismiss Appeal, Motion for Decision (Summary Judgment) and Motion to ExtendDiscovery Deadline dated 6May 2014; failed to respondto our Amended Procedural Order served May 7, 2014; failed to Answer FAA's Motion to Strike Response to Motion for Summary Judgment and Response to Respondent's Motionto Compel Discover and Motionto Extend Discovery Deadline dated 12 June 2014; nor Answer FAA'sMotion'for Clarification to the ALJ's Order on Complainant'sMotions dated 15 July 2014.

2We issued a Show Cause Order on September 9, 2014, instructing Barbera respondto pleadings on or before October 1, 2014. Barberahas failed to do so. WHEREFORE, the Agency's Motion for Judgment onthe Pleadings having been read and considered, itbe and is hereby ORDERED as follows: 1. Respondent's Request for Hearing be and is hereby DISMISSED with prejudice; and 2. Respondentbe and is hereby DEEMED to have admitted to all ofthe allegations in the Agency's Complaint; and 3. The Agency's Motion for Judgment on the Pleadings be and is hereby GRANTED; and 4. Respondent be and is hereby assessed a civil penalty in the amount of$1,I00 against Respondent as requested in Agency's Complaint

Richard C. Goodwin U.S. Administrative Law Judge Attachment- Service List

3