03/25/2015 09:32 4252271007 

PAV!DF.SHAYNE 

FAA OFFICE OF REGIONAL COUNSEL 

1601 LJNOAVE., SW 

RENTON, W ASHD:<G!ON 98057 

TELEPHONE: (425) 227"2).65 

F ACSIMJLE: ( 425) 2Z7 -1007 

ANfH 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

Joseph P. Barbera 

INTRODUCTION 

FAA Case No. 201JNM090056 

FDMSDNo. FAA2013-1083 

Complainant's Reply Brief 

PAGE 02/10 

The ALJ in the above-captioned matter dismissed Respondent's appeal, entered a default 

judgment £nding the violations committed as alleged in Complainant's Final Notice of Proposed 

Civil Penalty (FNPCP) and imposed the fine stated therein of $1,100. Respondent £led a pleading 

which was accepted as an appeal. He has now £lied a brief in which he argues the ALJ erred in 

finding that Respondent had failed to comply with the ALJ' s previous orders, and moves for a 

reversal of the ALJ's Order Entering Default Judgment Against Respondent (Order of Dismissal). 

For the reasons set fonh below, Complainant moves that Respondent's appeal be denied 

and the ALJ' s Order of Dismissal be affinned. 

FAA v. Joseph D. Barbera. 

Comp/ailtant•s f!tply IJriif 

FAA Ca>e No. 2013NM090056 

Paoe I of9 

DA'm F. Sawm, FAA ATTORNEY 

TEL: (425) 227-2165; FA.X: (42$) ~27-1007 
03/25/2015 09:32 4252271007 ANM7 PAGE 03/10 

PROCEDURAL HIS'l'ORY 

On November 21,2013, the Administrator issued a Notice ofProposed Civil Penalty 

proposing to fine Respondent for the illegal operation of an ultralight vehicle. Respondent 

exercised his right to an informal conference. While the parties exchanged information, they were 

unable to arrive at settlement. 

On February 18, 2014, the Administrator served Respondent with a Final Notice of 

Proposed Civil Penalty that stated in its pertinent parts: 

On November 21, 2013, you were advised through a Notice ofl'roposed Civil Penalty (Notice) 

that the Federal Aviation Administration. (FAA) proposed to assess a civil penalty in the amount 

of $1,100. 

After considering all the information presently a part of this proceeding, as well as the information 

provided during the January 15, 2014, informal conference, it appears that: 

1. On or about June 22, 2013, you. operated an ultralight vehicle at an altituile higher 

than 18,000 feet Mean Sea LeveL · 

2. As a result of the above, you operated an ultralight in Class A airspace v.ithout 

obtaining prior authorization from the ATC facility having jurisdiction over that 

airspace. 

3. As a result of the above, you operated an ultralight vehicle in a manner that created a 

hazard to other persons or property. 

By reason of the foregoing circumstances, it appears that you violated the following sections of 

the Federal Aviation RegUlations (FAR) (14 Code of Federal Regulations (C.F.R.)): . . 

a. Section J03.9(a), in that you operated an ultralight vehicle in a. manner that created a 

hazard to other persons or property. 

b. Section 103.17, in that you operated an ultralight vehicle within Class A airspace 

without obtaining prior authorization from the ATC facility having jurisdiction over 

that airspace. · · 

Under 49 United States Code Sections 46301(a) and (d), with modifications set forth at (14 

C.F.R.) Part 13, Subpart H, you are subject to a civil penalty not to exceed $11,000 for each 

violation noted. We propose to assess a civil penalty in the amount of$1, 100. 

FAA v. Joseph D. Barbera. 

Camplal,ant's Reply Bririf 

FAA Case No. 2013NM0,0056 

Page Z of9 

DA vm F. SIU. YNE, FAA Anoru;n 

TEL: (425) 2l7-2165; FAX: (425) 227-1007 
03/25/2015 09:32 4252271007 ANM7 PAGE 04/10 

On March 3, 2014, Respondent fi.led a timely Request for Hearing. On March 6, 2014, 

Complainant filed the Complaint in this case, which is essentially identical to the FNPCP. The 

following language appears at the end of the Complaint: 

In accordance \Vi.th 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 it. 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_ Section 13.209(±)]." 

On March 25, 2014, The Han. Richard C. Goodwin (hereafter the "ALJ") issued a 

Procedural Order, which specifically stated that Respondent must file an Answer or written 

motion within 3 0 days after service of the Complaint, and fuilure to do so without good cause "is 

deemed an admission of each allegation in the Complaint." (Emphasis added). 

Notwithstanding the clearly worded instructions in both the Complaint and the first 

Procedural Order, Respondent failed to file an Answer by the April6, 2014 deadline. 

On April18, 2014, Complainant served and :filed a "Motion to Deem Allegations 

Admitted and to Dismiss Appeal. 

In response to Complainant's motion, Respondent served au Answer on April28, 2014, 

accompanied by an explanation for the tardiness as being his misreading of the Procedural Order. 

In his An.swer, he neither admitted nor denied the allegation of violation. 

On May 5, 2014, the ALJ issued an Order Denying Agency Motion for Decision in which 

he acknowledges thatRespondent had :filed Answer. There is no discussion of the timeliness of 

the Answer. 

On May 6, 2014, Complainant served and filed a Motion for Reconsideration of its motion 

to deem al.legations committed, and a Motion for Summary Judgment based on Respondent's 

FAA v. Joseph D. }larbera. 

Complainant's Rep{v Brief 

:F.AA Case ]'lo. 2013NM090056. 

Pagd of9 

DAVID F. SHAYNE, F .AA AncirumY 

TEL: (425) 227-2165; FAX: (425) 227-1007 
03/25/2015 09:32 4252271007 AN1~7 PAGE 05/10 

Answer. In its Motion for Reconsideration, Complainant specifically argued that the tardy Answer 

should not be accepted unless Respondent can demonstrate good cause for the tardiness. In its 

Motion for Summary Judgment, Complainant pointed out Respondent did not actually deny the 

key allegation, that he operated his ultralight over 18,000 feet, but simply stated the evidence did 

not prove the atlegation. Complainant provided exhibits comprising evidence that established the 

violation. 

On May 7, 2014, the ALJ issued an Amended Procedural Order that did not address 

Complainant's most recent motions. 

On or about June 4, 2014, Respondent served an untimely response to Complainant's 

Motion for Summary Judgment and what appeared to be a Motion to Compel discovery 

responses. Apparently, this pleading was never filed with the ALJ or the Hearing Docket Clerk. 

On June 12, 2014, Complainant moved to strike Respondent's June 4, 2014, pleading on 

the grounds it was untimely pursuant to 14 C.FR Sections 13.218 and 211. 

On July 10,2014, the ALJ issued an Order on Complainant's Motions in which he stated 

that Respondent's June 4, 20 I 4, pleading had not been filed ;vith him and admonishing 

Respondent to comply with all filing deadlines or face potential adverse sanctions. 

On July 15, 2014, Complainant served and filed a Motion for Clarification, asking the ALJ 

to state spe~ifically whether the issuance of his July 1 0, 20 14, Order had been intended to convey 

a denial of Complainant's May 6 Motions, or whether these were still under review. 

Not receiving a response from the ALI, and even though Complainant had already 

informed Respondent it would respond to discovery requests only after the ALJ ruled on its May 

FAA v. Joseph D. Barbera. 

Complainant's Reply Brief 

FAA Case No. 2013NM09005G 

hge4 of9 

DAVID f. SaA>:r<E, FAA ATTORNEY 

TEL: (4~~) ~27-2165; FAX: (425) 227-1007 
03/25/2015 09:32 4252271007 ANM7 PAGE 05/10 

6, 2014, Motions, out of an abundance of caution, Complainant responded to Respondent's 

discovery requests and promulgated its own discovery requests to Respondent. 

Then, on September, 9, 2014, the ALJ issued an Order to Show Cause in which he 

directed Respondent to provide several documents by October 1, 2014, including, inter alia, 

an Answer to the Complaint and a response to Complainant's Motion for Summary Judgment. 

On September 29, 2014, Respondent served several documents on Complainant. It is not 

known by the undersigned whether these documents were filed with the ALJ or the Hearings 

Docket Clerk. These included a general response (without specifics) to the Motion for Summary 

Judgment and a new Answer wherein, for the first time, he specifically denied the all~gation that 

he entered Class A airspace. 

On October 2, 2014, Complainant served and filed a reply to Respondent's submissions 

and asked that its May 6, 2014, Motions be granted . 

. ·On October 15, 2014, the ALJissued his Order of Dismissal. He cited to numerous .• 

alleged failures of Respondent to file responsive pleadings, including an Answer and repl~ to . 

Complainant's Motion for Summary Judgment_ The Order does not address the sufficiency or the 

tlmellness of the Answer that was filed on April 28, 2015. 

On October 27, 2014, Respondent served a pleading titled "Response to Order Entering 

Default Judgment" in which he argued that he had complied with the Show Cause Order and 

requesting clarification .. Apparently, that pleading was filed with the ALl 

On-November 25, 2014, the ALJ issued an "Order of Referral to the Administrator." As 

described above, Respondent's appeal was accepted. On February 22, 2015, Respondent filed his 

~ppellate brief. 

FAA v. Joseph D. Barbera. 

Complainant's Reply Bl1if 

FAA Case No .• 201JNM0900S6 

PageS of9 

DAVIDF, SHAYNE, FAA ATTORNEY 

TEL; (4::\5) nN165; F./\.'1:: (4~5) llH007 
03/25/2015 09:32 4252271007 ANI~7 PAGE 07/10 

Complainant hereby replies and requests that the ALJ's Order of Dismissal be affirmed. 

ARGUMENT AND RELIEFREQUESTED 

·Respondent argues that he has supplJed all of the documents required of him in the ALJ's 

Show Cause Order. Complainant neither disputes nor concurs with that statement as Complainant 

is not in a position to know what was or was not properly served on the ALJ. Rather, 

Complainant submits that the Order of Dismissal can and should be affirmed on alternative 

grounds, specifically, on the basis of Respondent's failure to timely file an Answer and, 

additionally, on the basis that Complainant is entitled to Summary Judgment. This tribunal may 

affirm the ALJ' s Order for reasons not expressly stated by the ALJ himself. See, ll~, In re 

Evergreen Helicopters Q{A!aska, FAA Order No. 2000-12. 

A. Complainant is entitled to a Judgment on the Pleading due to Respondent's 

failure to file a timely Answer. 

Complainant hereby incorporates its motions for Reconsideration and Summary 

Judgment by reference. As argued therein, Respondent bears a heavy burden of 

.demonstrating good cause for failing to file a timely Answer. The only excuse he could 

conjure up wasta claim he misinterpreted the ALJ's Procedural Order ofMarch 2.5, 2014. 

Assuming, arguendo only, that he could be "forgiven" for somehow misconstruing the 

plain language of the ALJ's.Order as set forth above, he provides no explanation or 

argument for his failure to heed the clear instructions in the Complaint itself (also set out 

above); let alone his abject failure to read and follow the procedural rules. 

There is no good cause explanation for Respondent's nearly three week delay in filing 

the Answer. Moreover, even the Answer that was filed did not constitute a denial that 

comports with 14 C.F.R. 13.209(e). That rule states: 

FAA v. Joseph D. Barbera. 

Complainant's Reply l3rl•f 

FAA C•se No. l013NM090056 

Pogo 6 of9 

DAVlDF. SHA.YNK, FAA ATTORNEY 

TEL: (425) 227-2165; FAX: (425) 227-1007 
03/25/2015 09:32 4252271007 ANM7 PAGE 08/10 

"Specific denial of allegations required_ A person filing an answer shall admit, deny, or 

state that the person is without sufficient knowledge or infonnation to admit or deny, each 

numbered paragraph ofthe complaint. Any statement or alLegation contained in th& 

complaim that is not specificallY. denied in the answer may be deemed an 9.dmission of the 

trnth of that a1Iegatiq!1,. A general denial of the complaint is deemed a failure to flle an 

answer." 

(Emphasis added). tn the Answer Respondent filed on April-18 2014, he failed to 

specifically deny that he entered Class A airspace. That allegation should be deemed 

admitted, along with ;est that were openly admitted. 

Thus, Respondent failed to specifically deny the allegation at issue at all, let alone 

within the required time limit. Accordingly, the ALJ' s Order of Dismissal should be 

affirmed on the basis that Respondent failed to filea timely An.swerwith aspeciflb d~nial . 

ofthe key allegation at issue_ 

B. Complainant is entitled to Summary Judgment. 

Complainant submitted several· supporting documents wi.th its Motion for Decision, 

including a letter from Respondent in which he fully admits that he entered Class A 

airspace. In his untimely Response to the summary judgment motion (the subject of a 

Motion to Strike that was neither granted nor denied, see above) Respondentdoes\iot' 

deny that he entered Class A airspace but presented an argument that the technol~gy upon 

which he based his admission was not entirely reliable. 

FRCP 56 applies to summary judgment determinations in FAA cases, at least as 

persuasive authority. See ~J!9rizon Air Industries, Inc. FAA Order No. 96-24 (FN3). 

FRCP 56( c )(1 )provides that a party asserting a fact ls genuinely disputed must support its 

assertion in the manner set forth in (A) or (B). Respondent's submission of June 4, 2014, 

even if it is entitled to co~sideration, does not meet this requirement. Specific'al!y, he fails 

FAA v; Jruicph D. Barbera. 

Complainant's Reply Briif 

FAA C••• .No, 20J.3NM090056 

Page 7 of9 

DAVID F, SHAYNJO, FAA ATTORNEY 

TEL! (425) 227"2165; FAX: (425) 227"1007 
03/25/2015 09:32 4252271007 ANM7 PAGE 09/10 

to provide any evidence, citation to evidence, or even an explanation as to why his 

admission should be disregarded, other than his conclusory statement that his admission 

was based on a GPS device that should not be accepted as reliable. 

The record establishes by competent and uncontroverted evidence that Respondent 

entered Class A airspace. Complainant has met it burden of proving by a preponderance of 

the evidence that Respondent entered Class A airspace_ Accordingly, summaxy judgment 

should be granted. 

CONCLUSION 

Respondent has abysmally failed to comply with the procedural requirements applicable in 

this case. It appears that he disobeyed the specific requirements of the ALJ's Show Cause Order 

but, even if he did provide the documents at issue as he claims, he still failed to file a timely or 

proper Answer to the Complaint and he failed to timely or adequately respond to Complainant's 

Motion for Summaxy Judgment. 

For these reasons, at least, the ALJ' s Order of Dismissal was proper and should be 

affirmed. 

Respectfully submitted this 251h day of March 2015. 

I . 

FAA v. Joseph D. Barbera. 

Complainant's Rop/y Brbif 

FAA Cas• No. 2013NM090056 

PageS of9 

DAVJ:OF. SHA'IN<', FAA AITO.RNil~ 

TEL: (4:Z5) :Z27·ll65; l!'A-X: (425) 227-).007 
03/25/2015 0g:32 4252271007 ANH7 PAGE 10/10 

CERTIFICATE OF SERVICE 

I hereby certifY that the foregoing Complainant's Motion to Affirm Judgment has been served as 

designated by the recipient's name this date, to the following: 

Federal Aviation Administration-Facsimile 

Attn: Hearing Docket Clerk, AGC-430 

Fax: (:202) 267-1293 

Joseph D Barbera- First Class, Certified and Return Receipt Requested Mail 

14706 NE Erickson Dr. 

La Center, WA 98629-4405 

Dated thls 25th day of March 2015. 

l'AA v. Joseph D. Barbera. 

Complainant's Reply 8riif 

FAA Ca•o No. :Z0l.3NM090056 

Page 9 of9 

. ..... , 

----· . /··'// . . . 

~/7 ,~- . . . ~/(il~-tt-L · 

T I i Kirk -

O~ce ofRegional Counsel (ANM-7) 

Federal Aviation Administration 

1601 Lind Ave. SW 

Renton, W A 98057 

(425) 227-2007 

DAVID F. SHATh'E, FAA ATIORNEY 

TEL: (425) 227-2165; FAX: (425) :Z27-l007 
03/25/2015 09:32 4252271007 AN1~7 

FACSIMILE MESSAGE 

DAVID F. SHAYNE 

FEDERAL A VJA TION ADMINISTRATION 

Ol3'FlCE OF REGIONAL COUNSEL 

ANM·7 

1601 LlND AVENUE S.W. 

RENTON, WASHINGTON 98057 

PAGE 01/10 

rhe information contained in this facsimile message is legally privileged and confidential 

information and is intended only for the use of the individual named on this cover sheet. 

If the reader of this message is not the intended recipient, you are hereby notified that any 

use, dissemination, distribution, or copy of this facsimile is strictly prohibited. If you 

have received this facsimile in error, please immediately notify us by telephone at 

425-227-2007, 

DATE: 

TO: 

FAX NO.: 

PHONE NO.: 

March 25, 2015 

Hearing Docket Clerk 

(202) 267-1293 

RE: Joseph Email: 

Barbera 

Case No. 

2013NM090056 

FDMS J!'AA 

2013-1083 

COMPLAINANT'S REPLY BRIEF 

NO. PAGES: 

FROM: 

FAX NO.: 

PHONE NO.: 

10 including cover 

David F. Shayne 

425-227-1007