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UNITED STATES DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

In the Matter of: JOSEPH D. BARBERA

FAA Order No. 2015-1

FDMS No. FAA-2013-10831

Served: January 7, 2015

ORDER CONSTRUING DOCUMENT AS NOTICE OF APPEAL

AND SETTING BRIEFING SCHEDULE2

On September 9, 2014, Administrative Law Judge (“ALJ”) Richard C. Goodwin issued 

an “Order to Show Cause” directing Respondent Joseph D. Barbera (“Respondent”) to answer, 

on or before October 1, 2014, the complaint, motions, and discovery requests of Complainant 

Federal Aviation Administration (“Complainant”). The ALJ warned Respondent that without 

full, complete, and timely responses, a default judgment could be entered against him.

The ALJ issued an “Order Entering Default Judgment Against Respondent” on 

October 15, 2014. The ALJ wrote in the order that according to pleadings filed in the Federal 

Docket Management System, Respondent had failed to answer the complaint, the ALJ’s 

procedural order, Complainant’s motions, and the ALJ’s show cause order. The ALJ dismissed 

Respondent’s request for hearing with prejudice, deemed all the allegations in the complaint 

 

1 Materials filed in the FAA Hearing Docket (except for materials in security cases or materials 

under seal) are also available for viewing at the following Internet address: www.regulations.gov.

2 The Administrator’s civil penalty decisions, along with indexes of the decisions, the rules of 

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

www.faa.gov/about/office_org/headquarters_offices/agc/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.
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admitted, granted Complainant’s motion for decision, and assessed Respondent the $1,100 civil 

penalty sought in the complaint.

Respondent subsequently sent the ALJ a document entitled “Response to Order Entering 

Default Judgment.” The postmark date on the envelope is October 22, 2014. In this document, 

Respondent advised the ALJ that he had indeed met the deadline specified in the order to show 

cause. Respondent also submitted United States Postal Service (“USPS”) tracking numbers to 

show that he had met the deadline. 

Once the ALJ issued the default judgment, he lost jurisdiction over the case and did not 

have authority to reconsider or vacate the default judgment. Keller, FAA Order No. 2011-2 at 6 

(January 11, 2011). As a result, in a document captioned “Order of Referral” and served on 

November 25, 2014, the ALJ referred Respondent’s “Response to Order Entering Default 

Judgment” to the FAA decisionmaker for consideration as a notice of appeal.

On December 16, 2014, Complainant filed a motion captioned “Complainant’s Motion to 

Affirm Dismissal” in which Complainant asks the FAA decisionmaker to affirm the ALJ’s 

“Order Entering Default Judgment” on the grounds that Respondent failed to file a timely answer 

and there is no genuine issue of fact. In the motion, Complainant argues that Respondent’s 

“Response to Order Entering Default Judgment” is not a notice of appeal and should not be 

construed as such. Complainant contends that if the FAA decisionmaker does treat the 

“Response to Order Entering Default Judgment” as a notice of appeal, then the FAA 

decisionmaker should set a schedule for briefing from both parties.

On December 26, 2014, Respondent filed a document captioned “Response to Order to 

Complainant’s Motion to Affirm Dismissal.” In this document, Respondent pointed out that he 

had provided tracking numbers that proved that he did respond on time, contrary to the ALJ’s 
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finding. Respondent disagrees with Complainant that there are no genuine issues of material 

fact, but he agrees completely with Complainant that a briefing schedule should be set.

Respondent’s “Response to Order Entering Default Judgment” is hereby construed as a 

notice of appeal. Under 14 C.F.R. § 13.233(a), a party must file a notice of appeal no later than 

10 days after service of the written initial decision on the parties.

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 Under 14 C.F.R. § 13.211(e), 

the “mailing rule,” Respondent had 5 additional days to file a notice of appeal.

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The ALJ served 

his “Order Entering Default Judgment” on October 15, 2014. Accordingly, Respondent’s notice 

of appeal was due to be filed no later than October 30, 2014. Respondent’s “Response to Order 

Entering Default Judgment” bears a postmark of October 22, 2014, and thus was timely as a 

notice of appeal. 

In addition, under 14 C.F.R. § 13.233(c), a party must perfect an appeal by filing an 

appeal brief with the FAA decisionmaker no later than 50 days after service of a written initial 

decision on the party.

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 Under 14 C.F.R. § 13.211(e), the mailing rule, a respondent has 

5 additional days to file an appeal brief after service by mail.

Respondent is granted 50 days, plus an additional 5 days under the mailing rule, from the 

service date of this order, to file an appeal brief. After that, Complainant is granted 35 days, plus 

 

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14 C.F.R. § 13.233(a) provides that “[a] party shall file the notice of appeal not later than 10 

days after entry of an oral initial decision on the record or service of the written initial decision on the 

parties ....” 

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14 C.F.R. § 13.211(e), the mailing rule, provides that “[w]henever a party has a right or a duty 

to act or to make any response within a prescribed period after service by mail, 5 days shall be added to 

the prescribed period.”

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14 C.F.R. § 13.233(c) provides that “a party shall perfect an appeal, not later than 50 days after 

entry of the oral initial decision on the record or service of the written initial decision on the party, by 

filing an appeal brief with the FAA decisionmaker.
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an additional 5 days under the mailing rule, to file a reply brief, starting from the date that 

Respondent serves the appeal brief on Complainant.

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MICHAEL P. HUERTA, ADMINISTRATOR

Federal Aviation Administration

Original signed by Vicki S. Leemon

VICKI S. LEEMON7

Manager, Adjudication Branch

 

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14 C.F.R. § 13.233(e) provides that “any party may file a reply brief with the FAA 

decisionmaker not later than 35 days after the appeal brief has been served on that party.”

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Issued under authority delegated to the Chief Counsel and the Assistant Chief Counsel for 

Litigation by memorandum dated October 27, 1992, under 49 U.S.C. § 322(b) and 14 C.F.R. § 13.202 

(see 57 Fed. Reg. 58,280 (1992)) and redelegated by the Assistant Chief Counsel for Litigation to the 

Manager, Adjudication Branch, by Memorandum dated August 6, 1993.