03/25/2015 09:32 4252271007

PAV!DF.SHAYNE FAA OFFICE OF REGIONAL COUNSEL 1601 LJNOAVE., SW RENTON, WASHD:<G!ON 98057 TELEPHONE: (425) 227"2).65 FACSIMJLE: (425) 2Z7-1007 ANfH



### UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

Inthe 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 ofProposed Civil Penalty (FNPCP) and imposed the fine stated therein of$1,100. Respondent £led apleading which was accepted as an appeal. He has now £lied abriefin 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 ofthe 

### ALJ's OrderEntering Default Judgment Against Respondent (Order ofDismissal). For the reasons set fonh below, Complainant moves that Respondent's appeal be denied and the ALJ's Order ofDismissal be affinned.

FAA v. Joseph D. Barbera. Comp/ailtant•sf!tply IJriif FAA Ca>e No. 2013NM090056 Paoe I of9 DA'mF. Sawm, FAAATTORNEY TEL: (425) 227-2165; FA.X: (42$)**~27-1007**03/25/2015 09:32 4252271007 ANM7 PAGE 03/10

PROCEDURALHIS'l'ORY On November 21,2013, theAdministrator issued a Notice ofProposed Civil Penalty proposing to fine Respondent for the illegal operation ofanultralight 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 Penaltythat stated in its pertinent parts: OnNovember 21, 2013, you were advised through a Notice ofl'roposed Civil Penalty (Notice) thatthe Federal Aviation Administration. (FAA) proposed to 

### assess a civil penalty 

### in the amount of $1,100. 

### After considering all the information presently a part ofthis 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 SeaLeveL · 2. As a result ofthe above, you operated an ultralight in Class A airspace v.ithout obtaining prior authorization from the ATC facility havingjurisdiction overthat airspace. 3. As a result ofthe above, you operated an ultralight vehicle in a manner that created a hazard to other persons orproperty. By reason ofthe foregoing circumstances, it appears that you violated the following sections of theFederal Aviation RegUlations (FAR) (14 Code ofFederalRegulations (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 orproperty. b. Section 103.17, in thatyouoperated an ultralight vehicle within Class A airspace without obtaining prior authorizationfrom the ATC facility havingjurisdiction over that airspace. · · Under49 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. JosephD. Barbera. Camplal,ant'sReplyBririf FAA Case No. 2013NM0,0056 Page Z of9 DAvmF. SIU.YNE,FAAAnoru;n TEL: (425) 2l7-2165; FAX: (425) 227-100703/25/2015 09:32 4252271007 ANM7 PAGE 04/10

On March 3, 2014, Respondent fi.led 

### atimely Requestfor Hearing. On March 6, 2014, Complainant filed the Complaint inthis case, which is essentially identical to the FNPCP. The following language appears at the end ofthe Complaint:

In accordance \Vi.th Section 13.209 ofthe Federal Aviation Regulations, Joseph Barbera, must answerthis Complaintnot laterthan 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 ofthe truth ofeach allegation contained inthe 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 ofthe Complaint, and fuilure to do so without good cause "is deemed an admission ofeach 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. Inresponse to Complainant's motion, Respondent served 

### au Answer on April28, 2014, accompanied by an explanation for the tardiness 

### as being his misreading ofthe Procedural Order. In

### his An.swer, he neither admitted nor denied the allegation ofviolation. On May 5, 2014, the ALJ issued an OrderDenying AgencyMotion for Decision in which he acknowledges thatRespondent had :filed Answer. There 

### is no discussion ofthe timeliness of theAnswer. On May 6, 2014, Complainant served and filed aMotion 

### for Reconsideration 

### ofits motion 

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

FAAv. JosephD. }larbera. Complainant'sRep{vBrief :F.AA Case ]'lo. 2013NM090056. Pagd of9 DAVID F. SHAYNE, F.AA AncirumY TEL: (425) 227-2165; FAX: (425) 227-100703/25/2015 09:32 4252271007

**AN1~7** PAGE 05/10

Answer. In itsMotionfor Reconsideration, Complainant specifically argued that the tardy Answer should not be accepted unless Respondent can demonstrate good cause for the tardiness. In its Motionfor 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 Orderthat did not address Complainant's most recent motions. On or about June 4, 2014, Respondent served an untimely response to Complainant's Motionfor 

### Summary Judgment and what appeared to be aMotion 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 

### itwas 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 thatRespondent's June 4, 20I4, pleading had not beenfiled ;vith him and admonishing Respondent to comply with all filing deadlines or face potential adverse sanctions. On July 15, 2014, Complainant served and filed aMotion for Clarification, asking the ALJ to state

**spe~ifically** whether the issuance ofhis July 1 0, 20 14, Order had been intended to convey a denial ofComplainant's 

### May 6Motions, or whether these were still under review. Not receiving aresponse from the ALI, and even though Complainanthad already informed Respondent it would respond to discovery requests only after the ALJ ruled on its May

FAA v. Joseph D. Barbera. Complainant'sReplyBrief FAA CaseNo. 2013NM09005G hge4 of9 DAVID f. SaA>:r<E, FAAATTORNEY TEL:

**(4~~) ~27-2165;**  FAX: (425) 227-100703/25/2015 09:32 4252271007 ANM7 PAGE 05/10

6, 2014, Motions, out ofan abundance ofcaution, Complainant responded to Respondent's discovery requests and promulgatedits own discovery requests to Respondent. Then, on September, 9, 2014, the ALJ issued an Order to Show Cause in which he directed Respondentto provide several documents by October 1, 2014, including, inter alia,
an Answer to the Complaint and aresponse 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 ortheHearings 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 areply to Respondent's submissions and asked that its May 6, 2014, Motions be granted
.

. ·On October 15, 

### 2014, the ALJissued his Order ofDismissal. He 

### cited to numerous .• alleged failures ofRespondent to file responsive pleadings, including an Answer and



## repl~ to . Complainant's Motion for Summary Judgment_ The Order does not address the sufficiency orthe tlmellness 

### ofthe Answer that was filed on April 28, 2015. On October 27, 2014, Respondent served apleading titled "Response to OrderEntering Default Judgment" in which he argued that he had compliedwith the Show Cause Order and requesting clarification
.. Apparently, that pleading was filed with the 

### ALl On-November

### 25, 2014, the 

### ALJ issued an "Order ofReferral to the Administrator." 

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



### ~ppellate brief.

FAAv. Joseph D. Barbera. Complainant'sReplyBl1if FAACaseNo.• 201JNM0900S6 PageS of9 DAVIDF, SHAYNE, FAAATTORNEY TEL; (4::\5) nN165; F./\.'1::

**(4~5)** llH00703/25/2015 09:32 4252271007

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Complainant hereby replies and requests that the ALJ's Order ofDismissal be affirmed. ARGUMENTAND RELIEFREQUESTED ·Respondent argues that he has supplJed all ofthe documents required ofhim in the ALJ's Show Cause Order. Complainant neither disputes nor concurs 

### with that statement as Complainant is not in aposition to know what was or was not properly served on the 

### ALJ. Rather, Complainant submits that the Order ofDismissal can and shouldbe affirmed on alternative grounds, specifically, on the basis ofRespondent'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'

### sOrderfor reasons not expressly stated by the ALJ himself. See,

**ll~,** In re Evergreen Helicopters Q{A!aska, FAA OrderNo. 2000-12. A. Complainant is entitled 

### to a Judgment on thePleading due

### to Respondent's failure to file a timely Answer. Complainanthereby incorporates its motions for Reconsideration and Summary Judgment by reference. As argued therein, Respondent bears aheavy burden of .demonstrating good cause for failing to file atimely 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" forsomehow misconstruing the plain language ofthe ALJ's.Order as set forth above, he provides no explanation or argument for his failure to heedthe clear instructions inthe Complaintitself(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 Answerthat was filed did not constitute a denial that comports with 14 C.F.R. 13.209(e). That rule states:
FAAv. Joseph D. Barbera. Complainant'sReplyl3rl•f FAA C•se No. l013NM090056 Pogo 6 of9 DAVlDF. SHA.YNK, FAA ATTORNEY TEL: (425) 227-2165; FAX: (425) 227-100703/25/2015 09:32 4252271007 ANM7 PAGE 08/10

"Specific denial ofallegations required_ Aperson 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 ofthe trnth ofthat a1Iegatiq!1,. A general denial ofthe complaint is deemed afailure 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 ofDismissal shouldbe affirmed on the basis that Respondent failed to filea timely An.swerwith aspeciflb



### d~nial . ofthekey allegation atissue_ B. Complainant is 

### entitled to SummaryJudgment. Complainant submitted several·supporting documents wi.th its Motion for Decision, including a letterfrom Respondent in which he fully admits that he entered Class A airspace. Inhis untimely Response to the summaryjudgment motion (the subject ofa Motionto Strike that was neither granted nor denied, see above) Respondentdoes\iot' denythat he entered Class Aairspace but presented 

### an argumentthatthe



### technol~gyupon which he based his admission was not entirely reliable. FRCP 56 applies to summaryjudgment determinations 

### in FAA cases, at least

# as persuasive authority. See

**~J!9rizon** AirIndustries, Inc. FAA OrderNo. 96-24 (FN3). FRCP 

### 56(c 

### )(1)providesthat aparty asserting afact ls genuinelydisputed must support its assertion 

### inthe manner set forth in (A) or (B). Respondent's submission ofJune 4, 2014,
even ifitis entitled to



## co~sideration, does not meet this requirement. Specific'al!y, he fails

FAA v;Jruicph D. Barbera. Complainant'sReplyBriif FAA C•••.No, 20J.3NM090056 Page 7 of9 DAVID F, SHAYNJO,FAAATTORNEY TEL! (425) 227"2165; FAX: (425) 227"100703/25/2015 09:32 4252271007 ANM7 PAGE 09/10



### to provide any evidence, citationto evidence, or even an explanation as to why his admission should be disregarded, other than his conclusory statement that his admission
was based on aGPS 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 ofproving by apreponderance of the evidencethat Respondent entered Class A airspace_ Accordingly, summaxyjudgment 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 failedto file atimely or proper Answer to the Complaint and 

### he failed 

### to timely or adequately respond to Complainant's Motion for SummaxyJudgment. For

### these reasons, 

### at least, 

### the ALJ's

### Order ofDismissal was proper and should 

### be affirmed.
Respectfully submitted this 251h 

### day ofMarch 2015.

I

.

FAA v. Joseph D. Barbera. Complainant'sRop/yBrbif FAA Cas•No. 2013NM090056 PageS of9 DAVJ:OF. SHA'IN<', FAA

**AITO.RNil~** TEL: (4:Z5) :Z27·ll65; l!'A-X: (425) 227-).00703/25/2015 0g:32 4252271007 ANH7 PAGE 10/10

CERTIFICATE OF SERVICE I hereby certifY thatthe foregoing Complainant's Motion to Affirm Judgment has been served as designated by the recipient's name this date, to thefollowing: Federal Aviation Administration-Facsimile Attn: Hearing Docket Clerk, AGC-430 Fax: (:202) 267-1293 Joseph DBarbera- First Class, Certified and Return Receipt Requested 

### Mail 14706 NE Erickson Dr. La Center, WA 98629-4405 Dated thls 25th day ofMarch 2015.

l'AAv. Joseph D. Barbera. Complainant'sReply 8riif FAA Ca•o No. :Z0l.3NM090056 Page 9 of9 . .....,


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## 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-l00703/25/2015 09:32 4252271007

**AN1~7**

FACSIMILE MESSAGE DAVID F. SHAYNE FEDERAL AVJA 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 ofthe individual named on this cover sheet. Ifthe reader ofthis message is not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copy ofthis facsimile is strictly prohibited. Ifyou have received this facsimile in error, please immediately notify us by telephone at 425-227-2007,


### DATE: TO: 

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### 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 

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