U.S. DEPARTMENTOF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IntheMatter ofMaryE. Bochiardy 2011EA170066 FDMSNo. FAA-2013-0853 Administrative LawJudge J.E. Sullivan 

# ReCEIVED CCi 072014 HEARING DOCKET

AGENCY'S RESPONSE TO RESPONDENT'S SEPTEMBER24,2014REQUESTFOR SUPPLEMENTALMATERIAL FILING COMES NOWtheAgency, the Federal AviationAdministration, by andthrough its designated and authorized representative, the Regional Counsel for the Eastern Region, and his designated and authorized representatives, and files its response to the Respondent's September 24, 2014 request for supplemental filing. TheAgency'sresponse, pursuantto 14 C.P.R.§ 13.214(c) 1
, is as follows: 1. On February 12, 2013, Respondent was provided with a copy of the Board's Rules of Practice, Subpart G. See Agency'sMotionto Strike (filed February 21, 2014) at Exhibit B. 2. On October 29, 2013, a Final Notice ofProposed Civil Penalty was served and it directed Respondent to 14 C.F.R. §13.16 for instructions about how to request an appeal. See id. at Exhibit C. 3. OnFebruary 21, 2014, Respondent was provided with a second copy ofthe Board's Rules of Practice, Subpart G. See id. 4. On June 11, 2014, Administrative Law Judge J.E. Sullivan, served an Order Finding the Request for Hearing Untimely, Reservingthe FAA's Motionto Dismiss and Setting Deadline for Filing SupplementalMaterial (hereafter, "Order#1").

1 Although Respondent did not classify her filing as an amended pleading, in her cover letter to the Department of Transportation she stated that she was filing an "updated June 24, 2014 response, Certificate of Service, and all signature pages 1,2 and 10". 15. Order #1 required Respondent to file "full email correspondence available to support her good cause arguments asserting a miscommunication between herself and Mr. Reigel regarding the filing of an appeal. If so, the Respondent needs to immediately file the full email correspondence, or in the alternative, fully disclose the date(s) and specific content of all missing communications, to perfect any good cause argument" by June 25, 2014. 6. OnJune 24, 2014, Respondent filed anunsigned Request for SupplementalMaterial. 7. On July 3, 2014, the Agency filed its Supplemental Reply to Respondent's Supplement MaterialFilingByRequest oftheU.S. Department ofTransportation. 8. On September 8, 2014, Administrative Law Judge J.E. Sullivan, served an Order Setting Deadline For The Respondent To Submit Signature For Supplemental Filing (hereafter, "Order#2"). 9. Order #2 required Respondent to "reviewher 6/24/14 Respondent Supplement, and then file
a sigued copy ofpages 1, 2, and 10 ofthe June 24,2014 material" by September26,2014. 10. On September 22, 2014, Attorney-Advisor for the Office ofHearings, U.S. Department of Transportation, Mr. Cody Smith, clarified for Respondent that she cancomply with Order#2 by either "resubmitting the 6/24/14 Respondent Supplement in its entirety with pages 1, 2, and 10 signed, or [] submit[] signed versions ofpages 1, 2, and 10 with a brief statement explaining why [she] was submitting them and that the signed pages shouldreplace pages 1, 2, and 10 ofthe 6/24/14 Respondent Supplement." See ExhibitA. 11. On this same date, Mr. Cody Smith provided Respondent with a copy of the Rules of Practice, published at 14 C.F.R. Part 13, subparts C and G. 12. On September23,2014, Respondentreplied to Mr. Smith'semail. See ExhibitA. 13. On September 24, 2014, Respondent mailed an amended version ofherprevious Request for SupplementalMaterial.2 14. Respondent did not comply with the requirements set forth in Orders #1 and # 2 or the instructionsprovidedbyMr. Cody Smith.

2 In her Certificate of Service, Respondent incorrectly certified that she mailed the filing on September 23, 2014. See Exhibit B. 2I. Respondent Did Not Comply With The Administrative Law Judge's Order or the Department OfTransportation's Attorney-Advisor's Instructions.
The directions contained in Order#2 were clear and concise. Respondent was ordered to file a signed copy ofpages 1, 2, and 10 ofher June 24. 2014 submission. Thereafter, AttorneyAdvisor Mr. Cody Smith for the Department of Transportation iterated these instructions to Respondent on September 23, 2014. See Exhibit A His instructions were unambiguous. With the exception ofproviding a signature, neither Order # 2 nor Mr. Smith's instructions provided Respondentwithleave to amend, expand, ormodifY herJune 24, 2014 filing. Notwithstanding, the Agency seeks to highlight the amendments made by Respondent in her supplementfiling herein. Specifically, Respondent amended her filing by deleting, adding to,
ormodifyingparts ofthe original June 24, 2014 submissionthrough:
a. Page 3 and Attachment A3

. Respondent attached a part of a Client Services Agreementbetween herselfand Attorney Reigel. Respondent did notprovide a copy ofthis document previously. Notably, her current (unsigned) attachment does not include the entire Agreement, so it is unclear what the scope of representation between Respondent and Attorney Reigel included, i.e., did it include the filing of appeals onherbehalf? b. Page 4. Respondent deletes the date December 30, 2013 from her submission. This deletion is significant, as Respondent's original submission represented that she learned, for the first time, on December 30, 2013 that Attorney Reigel was no longer representing her. In its response, the Agency challenged this statement and offered proof to the contrary. It must be noted that Respondent does not identity any alternative date. Consequently, it is not clear when Respondent learned that Attorney Reigel wouldno longerrepresent her inthis matter.
c. Page 5. Respondent added information pertaining to her travel plans. It should be noted that the time period identified is an approximation. Regardless, Respondent previouslyhadthe opportunity to, but did notprovide, this informationinher original submission. Notwithstanding, the time period identified does not substantiate good

3 The underlined portions of this section refer to Respondent's September 24, 2014 filing. 3

### cause for Respondent because she received the Order Assessing Civil Penalty on December 17,2014. d. Page 6. Respondent added an entire new section- section v. She also added aphone log. Respondent stated that she downloaded the phone log to an MS excel format, however, a duplicate original ofthe phone log was not provided, for reasons that are not clear. See Respondent's September 24, 2014 submission at 6. Respondent further states, at page 7 ofher submission, that these are the phone logs from the period of November 13, 2013 through December 6, 2013. Respondent did not provide phone logs from the period after December 6, 2013.4 

### As a result, the Agency asserts that her submission is incomplete and consequently, may not comply withthe requirements set forth in Order #!. 

### Based on this submission however, it appears there is another communication between Respondent and Attorney Reigel that Respondent failed to disclose in either submission. Specifically, on November 22, 20!3, Respondent called Attorney Reigel's office at 3:20 p.m. The call lasted for approximately 10 minutes.5 

### Instead, she states that she spoke with Attorney Reigel
onher office landline at approximately 3:50 p.m.6


### e. Page 7. Respondent added an explanation about her office land line (top ofthe page). She stresses that corroborative evidence ofher statement is "not available to solicit andis proprietaryto IBM andits customers." f. Page 8. Respondent added information about what was discussed between herself and Attorney Reigel onNovember 19, 2013. g. Page 10. Respondent added the word "emphatically" to describe Attorney Reigel's advice regarding appeals.

4 For reference, Respondent received the Order Assessing Civil Penalty on December 17, 2013. Respondent claims she was still represented by Attorney Reigel during this period.

5The call was placed to 952-238-1060 in Hopkins, Minnesota. Attorney Reigel's practice is located in Hopkins, Minnesota. The phone number listed on Attorney Reigel's email to Agency counsel and website is the same. See Agency's Motion to Dismiss Late-Filed Appeal at Exhibits Band J.

6It must be noted that November 22, 2013 is the date Respondent claims, on page 5 of her submission, that she was travelling by car from Florida to New Jersey. 4

### h. Pages 10-11. Respondent added the last paragraph that begins on page 10. Respondent states she was not given reference to the applicable Code of Federal Regulations until after December 2013. As noted above, Respondent was first provided a copy ofthe regulations on February 12, 2013. Thereafter, on October 29, 2013, she was directed to the appropriate regulations regarding how to file an appeal. A second copy ofthe regulations was provided to 

### her on February 21, 2014. In her recent communicationwith Mr. Cody Smith, Respondent still asserts that she has "no idea which ofthe hundreds of CFR rules apply
. . . [and] would need considerable timeto review andunderstandhow specifically to complyto all ofthis." Exhibit A.
1. 

### Page 12. Respondent expands herresponses to section 6. J. 

### Deleted Attachments. Respondent did not attach emails to her updated signed submission that were previously submitted with her original submission. Significantly, Respondent did not include the November 5, 2013 email between herself and her attorney. See Exhibit C. Previously, the Agency challenged the Respondent's submission ofthis document and claimed that it was not complete. See Agency's July 3, 2013 Supplemental Reply to Respondent's Supplemental Material Filing at 5. This email was important because the email references questions that Respondent asked ofher attorney for which Respondent to date has not disclosed what the contents of her questions were nor disclosed the email she sent to her attorney withthese questions. Respondent also did not attachthe June 10, 2013 email from AttorneyReigelto her updated submission. Respondent offers no explanation for her failure to follow the clear and unambiguous instructions provided by the Administrative Law Judge or the Attorney-Advisor from the Department ofTransportation ("DOT"). Respondent has been repeatedly directed to the rules governing civil penalty proceedings and has been provided with at least three copies

- two from the Agency and one from the DOT. Her failure to comply with the rules governing these proceedings should not be overlooked. See generally Inthe Matter ofAce Pilot Training, FAA2012-11975 (2005). See also In the Matter of Aviation Resources. Inc., FAA-2002-11515 (2002). "Althoughpro 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." Inthe Matter ofFritz Haiss, FAA-2003-15767 (2006). 5

### Moreover, as Respondent did not sign the original June 24, 2014 submission 

### in its entirety, any statements or documents included inthe original submissionbut not included inthe amended submission should be given no weight towards her good cause argument. Respondent did not sign her original pleading, therefore the deleted statements and documents were not certifiedbyRespondent thatthose filings were accurate and supportedby evidence to the best of Respondent's knowledge, information, and belief See Fed. R Civ. Proc. 11(b). Respondent's amended submission contains attachments previouslyprovided inher original submission. As a result, it can be presumed that Respondent intended not to resubmit all ofthe documents from her original, yet unsigned, submission. Nor did Respondent address the Agency's previous objections to these documents in her amended submission or offer an explanation for their deletion. Consequently, as Respondent intentionally deleted emails between herself and her attorney from the current submission, it caunot be stated that she fully complied with the Administrative Law Judge's Order #1 because she failed to submit "full email correspondence available" to her. Respondent's non-compliance with Order #1 caunot be ignored and a dismissal ofRespondent's appeal onthese grounds is warranted andjust. B. Respondent Still Has Not Provided Good Cause For Filing Her Appeal Late And Failedto PerfectHer Good Cause Argument. Respondent's September 26, 2014 supplemental submission still does not establish good
cause for her filing the appeal late and as such, the Agency relies upon and incorporates by reference, the arguments previously submitted by the Agency to the Court on July 3, 2014. Further, Respondent's original (unsigned) submission stated that she learned for the first time that Attorney Reigel was no longer representing her on December 30, 2013. Her recent submission is silent as to when she first learned this fact, although the Agency previously provided an email from Respondent that states she was aware ofthis fact at least as early as December24, 2013. See Motionto Dismiss Late-Filed Appeal atExhibitE, page 5. Notwithstanding her receipt ofthe Order Assessing Civil Penalty onDecember 17, 2013, Respondent purportedly waited an entire week before contacting her attorney about the Order. See id. Respondent provided no telephone logs or other written or electronic communications pertaining to the period after December 6, 2013 and expects the Agency and DOT to believe that upon learning of her attorney's failure to file an appeal that she had absolutely no
6

### communication with her attorney about this issue or received any guidance or instruction from him about this matter. Respondent's submissions are silent about this issue and she has not provided any phone logs for this period to corroborate her bold assertion. Respondent did not provide the entire services agreement entered into with her attorney so it is unclear whether or not her attorney had the authority to file an appeal on her behalf. The veracity ofRespondent's assertions is further questionable in light ofthe December 24, 2013 email from Attorney Reigel which stated he did not file an appeal based on Respondent's previous instructions. See Agency's Motion to Dismiss Late-Filed Appeal, Exhibit E at page 5. Nor did Respondent file any billing statements received from Attorney Reigel whichwouldundoubtedly containevidence ofany telephone calls and the dates any work was performed by Attorney Reigel. The lack of this information 

### inher original (unsigned) and supplemental filing is suspect. Lastly, even ifRespondent learned about her attorney's failure to file an appeal for the first time on December 24, 2013, which the Board does not concede7
, 

### Respondent still offers no good cause for why ittook her until January 8, 2014 to file an appeal. The Department has long held that "[p]rocedural rules must be enforced 

### in a non-arbitrary manner to ensure the integrity ofthe civil penalty process, even where this results in severe consequences." In re Jimmy Lee Harkins, CP93AL214 (1994). See also In the Matter ofPanalpina. Inc., CP06S00029 (2006). Respondent has been afforded a significant amount of opportunity to demonstrate good cause and she has repeatedly failed to meetthe standards established.

7 In an email from Attorney Reigel dated December 24, 2013, he clearly states that he previously informed Respondent that he would no longer be representing her in this matter and that she informed him that she would pursue an appeal on her own. See Agency's Motion to Dismiss Late-Filed Appeal at Exhibit E, page 5. As previously argued, Respondent has identified no malpractice case or ineffective assistance of counsel claim filed against Attorney Reigel. Consequently, unlike Respondent, there does not appear to be any motive for Attorney Reigel to make this representation. 7WHEREFORE, for all ofthe above reasons and for the reasons previously set forth in the Agency's July 3, 2014 Supplemental Reply to Respondent's Supplemental Material Filing By Request of the U.S. Department of Transportation, the Agency respectfully requests that the Administrative Law Judge's June 11, 2014 Order Finding the Request For Hearing Untimely be entered onto the docket.
Respectfully submitted, AlfredR. Johnson, Jr. Regional Counsel
By:

8CERTIFICATE OF SERVICE

I hereby certifythat onthis

# ,;2



# ~·day ofOctober, 2014, copies ofthe foregoing Agency'sResponse to Respondent's September 24,2014 RequestFor SupplementalMaterial Filinghas been serveduponthe following via CertifiedMail- ReturnReceiptRequested:



### OCT 2Z014 Dated: _____ _ Hearing Docket (Original and One Copy) AttentionHearing Docket Clerk Federal AviationAdministration 800 Independence Avenue, SW WashingtonDC 20591 Wilbur WrightBuilding-Suite 2Wl000 Washington, DC 20591 Hon. J.E. Sullivan Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 Ms. Mary E. Bochiardy 1450 SunsetPointBlvd. Clearwater, Florida 33755

ttomey FederalAviationAdministration Office ofRegional Counsel 1AviationPlaza Jamaica, NY 11434

9Vau han, Judith (FAA) From: Sent: To: Cc: Subject:

Mr. Smith, Mary Bochiardy <MaryBochiardy@comcast.net> Tuesday, September 23, 2014 9:44 PM Smith, Cody (OST) Judith Vaughan RE: Follow-up & Rules of Practice in FAA Civil Penalty Proceedings

Thank you for checking on my questions with regard to howto respond to Hon. Sullivan orders. 

# I I EXHIBIT 

# A

I have opened the link provided and have no idea which ofthe hundreds of CFR rules apply but I appreciate your providing me with them all. I would need considerable time to review and understand how specifically to complyto all ofthis. Best wishes, Mary Bochiardy (386) 214-0414 marybochiardy@comcast.net
From: cody.smith@dot.gov [mailto:cody.smith@dot.gov] Sent: Monday, September 22, 2014 4:34 PM To: martbochiardy@comcast.net Cc: judith.vaughan@faa.dot.gov Subject: Follow-up & Rules of Practice in FAA Civil Penalty Proceedings Ms. Bochiardy: Just to follow-up on our telephone conversation today, you can comply with Judge Sullivan's Order ofSeptember 8,
·· 2014, by either 1) resubmitting the 6/24/14 Respondent Supplement in its entirety with pages 1, 2, and 10 signed, or 2) submitting signed versions of pages 1, 2, and 10 with a briefstatement explaining why you are submitting them and that the signed pages should replace pages 1, 2, and 10 ofthe 6/24/14 Respondent Supplement In response to your question, the Rules of Practice are published at 14 C.F.R. Part 13, subparts C and G. They are accessible at, among other places, http://www.faa.gov/about/office erg/headquarters offices/age/pol adjudication/agc400/civil penalty/Rules/media/ds p RulesofPrac.pdf I have cc'd this e-mail to Ms. Vaughnjustto ensure that all parties have the same procedural information. Please feel free to contact me with any other procedural questions. 

### Cody Smith Attorney-Advisor Office of Hearings, M-20, U.S. Dep't ofTransportation 1200 NewJersey Ave., S.E. (E-11-310) Washington, DC 20590 Phone: 202-366-6941 e-mail: cody.smith@dot.gov

1(li (' "' -1 "' "' i {l ID ;r 3 ID "- m a 3 l 3 ill l **~** t m iii t . .. "' .. ?'

I **~** UNffEDSTL!TES

R
t '1 1/!JifMPOSTLlLSERVICE,

eat IIEssFJRMLYrosEAL PRESS

I

PRIORITY MAIL POSTAGE REQUJRI US POSTAGE PAID p P I Origin: 33765 4.20 oz. $5.75 * 09/24114 1116720145-12

1008 e::l **~** to. $ **~** PRIORITY MAIL® 2-DAY Expected Delivery Day: 09126114 USPS TRACKING NUMBER 1111 1111 II II

I I 9505 511 0 6245 4267 3763 18 WHI A CUSTOMS DECLARATION LABEL MAY BE REQUIRED. \II ll\\llll\llll\\\\\\\\\\\\l\ll\\\l\\

EP14F July 2013 **~OM:** ---------------- L PRIORITY® MIJIL UNITED STATES PDSTilL SEll VICE From **Mq-2Y~ItVch**

n I **tjSi)~u-r-Pr**
R.ct Clearw"-4- FL- :rnss·

For Domestic and Jnternatlotial Use TO 0_ W::£*'- (.,\)a.,.4vt-tJ ;;;@' C(_ oC **~ nwn~l** 

1 Gskr

N r;(e.)l"""- ")-erk( a.P (Jv 'i.uu-rrAJ **m.tJ~il,(Y\** label22B, January 2008

I AV,a;t, **.n~21"- 0c:vma.'cr~,**  0j !l'-1:34 **·~,** --'J#"'t:"/c **,.~~** f':"<"'? **1:~ ~**  .. VISIT US AT USPS.COM@ ----- ----

,.. ....... ,...,. ·-- **-~··** ......... **&~~!'!?;,**Britt Bochiard From: Sent: To: Subject: Mary: Greg Reigel <greigel@aerolegalservices.com> Monday, November 11,2013 10:42 AM 'Mary Bochiardy' RE: Update 

# I I EXHIBIT

We still needtotalkaboutthelimitedoptions availabletoyouatthis point. I amintheofficetoday, butthen outoftheofficetomorrowandWednesdayfor depositions. I willbebackintheoffice onThursday. Soonerisbetterthanlater sinceyouwillhave 15 days withinwhichtorequesta hearingonceyou actually receive theNotice. Thanks. Greg Reigel Reigel LawFirm, Ltd./ AeroLegal Services 921 Mainstreet Hopkins, MN 55343 Phone: (952) 238-1060 Fax: (952) 238-1099 wvvw.aerolegalservices.com Twitter: @ReigelLaw -----Original Message----- From: MaryBochiardy [mailto:MarvBochiardv@)comcast.net] Sent: Monday, November 11, 2013 9:38AM To: 'GregReigel' Subject: RE: Update Hi Greg, Hope ails well withyou. Still nothingfrom theFAA
...... -----OriginalMessage----- From: GregReigel [mailto:greigel@aerolegalservices.com] Sent: Tuesday, November05, 2013 9:04AM To: 'MaryBochiardy' Subject: RE: Update Mary: Itis probablyeasierto discuss andansweryour questions onthephone. Please give me a callwhenyougeta chance. I amintheofficeuntilwamCSTthismorningthenoutfor most oftherestoftheday. I willthenbeintheoffice all daytomorrow. Thanks. Greg Reigel Reigel LawFirm, Ltd./ Aero Legal Services 1