UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASIDNGTON, DC 

In the Matter of: JOSEPH D. BARBERA 

FAA Order No. 2015-4 

FDMS No. FAA-2013-1083 1 

Served: September 9, 20 15 

DECISION AND ORDER2 

I. Introduction 

Respondent Joseph D. Barbera ("Respondent") has appealed from the default judgment 

issued by Administrative Law Judge ("ALI") Richard C. Goodwin against Respondent on 

October 15,2014. The default judgment was in the amount of$1,100, the amount sought in the 

complaint. 3 This decision affirms the ALI's default judgment on the ground that Respondent 

has failed to show good cause for his failure to file a timely answer to the complaint. 

II. Case History 

On March 6, 2014, Complainant Federal Aviation Administration ("Complainant") filed 

the complaint in this 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 of the decisions, the rules of 

practice, and other infonnation, are available on the Internet at the following address: 

www.Jaa.gov/about/office _ orglheadquarters _offices/age/pol_ adjudication/A GC400/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 (FTRANF AA database). For additional information, see the Web site. 

3 A copy of the ALJ's written order entering default judgment, 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 of the above, Joseph Barbera operated an ultralight in Class A 

airspace4 without obtaining prior authorization from the ATC facility having 

jurisdiction over that airspace. 

• As a result of the above, Joseph Barbera operated an ultralight vehicle in a 

manner that created a hazard to other persons or property. 

The complaint further stated as follows: 

• By reason of the foregoing facts and circumstances, Joseph Barbera violated the 

following sections of the Federal Aviation Regulations (14 C.F.R.): 

o Section 103.9, in that [Joseph Barbera] operated an ultralight vehicle in a manner 

that created a hazard to other persons or property. 

o Section I 03.17, in that [Joseph Barbera] operated an ultralight vehicle within 

Class A airspace without obtaining prior authorization from the A TC facility 

having jurisdiction over that airspace. 

• In accordance with ... [49 U.S.C. §§ 4630l(a) and (d)], Joseph Barbera is liable for a 

civil penalty not to exceed $11,000 for each of the violations noted. 

• Under the facts and circumstances of this case, a civil penalty of$1,100 is 

appropriate. 

The complaint notified Respondent of the requirement to 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 of the Federal Aviation Regulations, 

Joseph Barbera must answer this Complaint not later than thirty (30) days from 

the time it is served on him. Failure 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. § 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 overlying the waters within 12 nautical miles (NM) 

of the coast of the 48 contiguous states and Alaska." Pilot's Handbook of Aeronautical 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"). 

2 
On March 25, 2014, the ALJ served a procedural order on the parties in which he advised 

Respondent about the need to file a timely answer as follows: 

[T]he Respondent must file a written Answer or motion within thirty (30) days 

after service of the 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 of each allegation in the Complaint 

(§ 13.209(£)). 

Respondent had 35 days from the service date of the complaint, or until April I 0, 2014, 

to file his answer under 14 C.F.R. §§ 13.209(ai and 13.2ll(e)6 

On April 18, 2014, Complainant filed a motion to 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 of letting this 

matter rest or admit guilt by non-response." Respondent said that he had interpreted the ALJ' s 

procedural order of March 25, 2014, to require an answer within 30 days of the procedural order 

rather than within 30 days from the complaint. 

On May 5, 2014, the ALJ issued an order entitled, "Order Denying Agency Motion for 

Decision," in which he denied Complainant's motion to deem allegations admitted and to 

dismiss appeal. The ALJ explained that after Complainant moved to deem the allegations of the 

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 pursuant to§ 13.208(d) or§ 13.218(f)(l-4) of this subpart 

instead of filing an answer, not later than 30 days after service of the complaint." 

6 14 C.F .R. § 13 .211( e), the "mailing rule," 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." 

3 
On May 6, 2014, Complainant filed a motion for reconsideration of its motion to deem 

allegations admitted and to dismiss appeal. Complainant argued that 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 summary judgment. In this 

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 of the allegation, and 

therefore Respondent had admitted the allegations set forth in the complaint. 

Further, Complainant argued, if the above-quoted language in Respondent's answer were 

construed to be a denial, Respondent was wrong about the lack of evidence. To show that 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 should be conclusive evidence that the 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 summary judgment of May 6, 2014, but it 

was untimely. The Rules of Practice provide that, "A party may file an answer, with affidavits or 

other evidence in support of the answer, not later than 10 days after service of a written motion 

on that party." 14 C.F.R. § 13.218(d). The "mailing rule" provides an additional5 days: 

"Whenever a party has a right or a duty to act or to make any response within a prescribed period 

7 The Hearing Docket never received this letter. 

4 
after service by mail, or on a date certain after service by mail, 5 days shall be added to 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 motion to strike Respondent's response, dated on 

or about June 4, 2014, to Complainant's motion for summary judgment. Complainant argued 

that Respondent was late in responding to Complainant's motion for reconsideration and 

summary judgment 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 summary judgment and order Respondent to comply with Complainant's 

Final Notice of Proposed Civil Penalty as the final order in this case. 

On July I 0, 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 been presented 

to him. The ALJ warned Respondent that if he failed to comply with the rules, then he could be 

sanctioned in any of the following ways- allegations in the complaint could be admitted, 

Respondent could be precluded from introducing evidence at the hearing other than his own 

testimony, Respondent's request for hearing could be dismissed, and a default judgment 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 of documents in this case entered in the Federal Docket Management 

System ("FDMS") and available in regulations.gov: 

... Barbera has failed to Answer the Complaint; failed to respond to our 

Procedural Order served March 25, 2014; failed to Answer FAA's Motion to 

5 
Deem Allegations Admitted and to Dismiss Appeal dated 18 Apri12014; failed to 

answer FAA's Motion for Reconsideration of Denial of Motion to Deem 

Allegations Admitted and to Dismiss Appeal, Motion for 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 Motion to 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 Motion for 

Clarification to the ALJ' s Order on Complainant's Motions dated 15 July 2014. 

In this Show Cause Order, the ALJ ordered as follows: 

1. That on or before 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 

of the FAA. 

2. Further, Barbera shall answer this Order stating why the relief 

requested in the Agency's Motions to Strike Response to Motion for 

Summary Judgment should not be granted; and 

3. Absent full and complete responses to paragraphs 1 and 2, Barbera may 

be sanctioned including, but not limited to, allegations in the 

Complaint may be deemed admitted; and/or Barbera may be precluded 

from introducing any evidence at the hearing other than his own 

testimony; and/or Barbera's Request for Hearing may be dismissed; 

and/or a Default Judgment may be entered against Barbera in the full 

amount of the fine requested by the Agency in its Complaint. 

On or about September 26, 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 and response to Respondent's motion to compel discovery, motion for reconsideration 

of denial of motion to deem allegations admitted and to dismiss appeal, a response to 

Complainant's motion for decision, a response to Complainant's motion to extend discovery 

deadline, a response to Complainant's motion to deem allegations admitted and to dismiss 

appeal, and a response to the ALJ's order to show cause. The service lists for these documents 

indicate that they were sent to the ALJ, the Hearing Docket, and Complainant's counsel. 

6 
On October 2, 2014, Complainant filed a reply to 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 summary judgment should 

be granted because the answer filed by Respondent in April 20 14 did not deny the allegation that 

he entered Class A airspace without an A TC clearance. 

On October 15,2014, the ALJ issued an order entering default judgment 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 with prejudice, deemed all the allegations in the complaint 

admitted, granted Complainant's motion for judgment on the pleadings, and assessed a civil 

penalty of $1, I 00 against Respondent, as requested in the complaint. 

On October 22, 2014, Respondent sent the ALJ a response to the order entering default 

judgment in which Respondent asserted that he complied fully with the ALI's order to show 

cause. The ALI, however, having entered the default judgment, no longer had jurisdiction. As a 

result, on November 25, 2014, the ALI referred Respondent's response to the ALI's order to 

show cause to the FAA decisionmaker. 

On January 7, 2015, the FAA decisionmaker construed Respondent's response to the 

ALJ's order entering default judgment as a notice of appeal 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-day time period set by Section 13.209(a) of the Rules of Practice 

7 
(14 C.P.R.§ 13.209(a)). Cornwall, FAA Order No. 1992-47 at 5 (July 22, 1992); Safety 

Equipment and Sign, FAA Order No. 1992-76 at 4 (December 21, 1992). Respondent, like 

Complainant, must know and meet procedural deadlines. Safety Equipment & Supply, FAA 

Order No. 1992-76 at 4 (December 21, 1992). Respondent in this case is prose, but prose 

respondents too must follow the Rules of Practice. Conquest Helicopters, FAA Order No. 1995-

25 at 6 n.6 (December 19, 1995); Global Peace Initiative, FAA Order No. 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 without good cause, a 

person's failure to file an answer shall be deemed an admission of the truth of each allegation 

contained in the complaint. Atlantic World Airways, FAA Order No. 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. Air Florida Express, FAA Order No. 2002-9 at 2 

(April 16, 2002), citing Stevenson, FAA Order No. 2000-29 (December 29, 2000); Atlantic 

World Airways, FAA Order No. 1995-28 at 3-4 (December 19, 1995); Safety Equipment & 

Supply, FAA Order No. 1992-76 at 4 (December 21, 1992). A showing of good cause is 

mandatory. Global Peace Initiative, FAA Order No. 2008-8 at 5 (August 21, 2008), quoting 

Atlantic World Airways, FAA Order No. 1995-28 at 3-4 (December 19, 1995). 

Under Sections 13.209(a)8 and l3.211(e) of the Rules of Practice (14 C.P.R.§§ 13.209 

and l3.211(e)) ,

9 Barbera had 30 days (plus 5 days) from the service date of the 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) of this subpmi 

instead of filing an answer, not later than 30 days after service of the complaint." 

9 14 C.F.R. § 13.2ll(e), the "mailing rule," 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." 

8 
until April 10, 2014, to file his answer, but Respondent failed to file his answer by the deadline. 

Complainant asserts that a letter from Respondent that was postmarked 13 days after the 

deadline, on April23, 2014, can be construed as an answer. 10 Also, Respondent filed an answer 

to the complaint on or about September 26, 2014, in response to the ALJ's order to show cause. 

In an apparent attempt to show good cause for his lateness, Respondent has stated that he 

interpreted the ALJ's procedural order of March 25, 2014, to require an answer from him within 

30 days of the procedural order, which was incorrect. Rather, Respondent was required to 

answer the complaint within 30 days of service of the complaint. The complaint contained an 

explicit statement of the requirement to file an answer within 30 days of service of the complaint. 

Likewise, the ALJ issued a procedural order in which he specifically reminded Respondent that 

he must file a written answer or motion within 30 days of service of the complaint. As in the 

Diamond case, "Respondent had the benefit of two specific written reminders to file the answer 

by the deadline, but still failed to do so. Good cause has not been shown." Diamond, FAA 

Order No. 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's Flying Service, FAA Order No. 1998-4 at 2-3 

(March 12, 1998). In Warbelow 's Air Ventures, FAA Order No. 1999-4 at 4-5 (July I, 1999), 

the Administrator found a marginal showing of good cause for a late-filed document, but 

War below'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. 

9 
The National Transportation Safety Board (NTSB) has held that unfounded mistakes 

regarding the calculation of a deadline do not constitute good cause for failing to submit a timely 

filing. Administrator v. Rice, NTSB Order No. EA-5667 at 2 n.8 (2013), citing Administrator v. 

Zaidi, NTSB Order No. EA-5469 (2009), in turn citing Administrator v. Dirksen, NTSB Order 

No. EA-4699 (1998); Administrator v. Shumate, NTSB Order No. EA-5555 at 5 (201 0); 

Application of Riggs for an Award of Attorney Fees and Expenses, NTSB Order No. EA-5312 at 

1 (2007); Administrator v. Slay & Knowles, NTSB Order No. EA-3956 (1993). The FAA 

decisionmaker is not bound by NTSB decisions, but may follow them if they are persuasive. 

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

Order No. 1993-18 at 6 (June 10, 1993); Richardson & Shimp, FAA Order No. 1992-49 at 9 n.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 of his answers to 

the complaint, this decision affirms the ALJ' s default judgment, in 

penalty. 

10 
l 

~ : ' 

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 

ORDER ENTERING DEFAULT JUDGMENT AGAINST RESPONDENT 

The Docket Management System (hereinafter "OMS") reflects the following 

pleadings in this 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. 

Barbera filed a Letter dated I 0 March 2014 outlining dates of availability. 

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 Denying Agency Motion for Decision on May 5, 2014. 
FAA filed a Motion for Reconsideration of Denial of Motion to 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 'Order on 

Complainant's Motions' dated 15 July 2014. 

According to pleadings filed in DMS, Barbera has failed to Answer the 

Complaint; failed to respond to our Procedural Order served March 25, 2014; failed to 

Answer FAA's Motion to Deem Allegations Admitted and to Dismiss Appeal dated 18 

April2014; failed to Answer FAA's Motion for Reconsideration of Denial of Motion to 

Deem Allegations Admitted and to Dismiss Appeal, Motion for 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 

Motion to Strike Response to Motion for Summary Judgment and Response to 

Respondent's Motion to Compel Discover and Motion to Extend Discovery Deadline 

dated 12 June 2014; nor Answer FAA's Motion' for Clarification to the ALJ's Order on 

Complainant's Motions dated 15 July 2014. 

2 
We issued a Show Cause Order on September 9, 2014, instructing Barbera 

respond to pleadings on or before October 1, 2014. Barbera has failed to do so. 

WHEREFORE, the Agency's Motion for Judgment on the Pleadings having been 

read and considered, it be and is hereby ORDERED as follows: 

1. Respondent's Request for Hearing be and is hereby DISMISSED with 

prejudice; and 

2. Respondent be and is hereby DEEMED to have admitted to all of the 

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, I 00 

against Respondent as requested in Agency's Complaint 

Richard C. Goodwin 

U.S. Administrative Law Judge 

Attachment- Service List 

3