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# I In the Matter of: ROBERTZIEGE Respondent 

### SERVED: February24, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC ) ) Docket No. FAA-2009-0182 ) ) Case No. 2009S0700030 )


### ORDERGRANTING AMENDMENT OF MOTION, DENYING THE MOTIONFORPARTIAL DECISION, AND DIRECTING THE PARTIES TO FILE COPIES OF DOCUMENTS WITHTHE COURT
OnNovember 19,2014,the Federal Aviation Administration ("FAA") Hearing Docket Clerk faxed to the U.S. Department ofTransportation's Office ofHearings the following documents: 1. A Request for Hearing, dated March 1, 2009, signed by

### prose Respondent Mr. Robert Ziege, 2. An FAA Complaint, datedMarch 6, 2009, signed by an FAA agency attorney, 3. An FAA Motion to Deem Allegations Admitted, dated February 16, 2011, signed by

·an FAA agency attorney, 4. A Letter dated March 2, 2011, signedby Respondent Mr. Robert Ziege, 5. A Notice ofAppearance, dated February 25, 2013, signedby an FAA agency attorney, and 6. A Motion for Partial Decision, dated February 25, 2013, signed by an FAA agency attorney. 

### BriefNote Regarding Age ofCase The documents listed above date back approximately six (6) years, to March 1, 2009, whenthe

### prose Respondent, Mr. Robert Ziege, served a Request for Hearing ("Request") on boththe FAAHearingDocket and the FAA Southern Regional Counsel. (Request, 1.) However,the first notification this courthad ofMr. Ziege's Request, orthe FAA's Complaint and Motions, was onNovember 19, 2014 (i.e., five and ahalf(5 

### Yz) years after the Request was served), when the FAA Hearing Docket Clerk faxed the documents (identified above) to the Office ofHearings. Although the two FAA Motions specifically requested relieffrom an Administrative Law Judge (i.e., Motions filed in 2011 and 2013), the FAA's attached Certificates ofService in 2011 and 2013 clearly demonstrated that the Office ofHearings was not served with either request. 1 The Motions also specifically noted that no FAA DocketNumber had ever been assigned, and no Judge had been appointed to the case. 2 Since the FAA Hearing Docket Clerkfaxed the material on November 19, 2014 to the Office ofHearings, no other documents have been filed by eitherparty. There has been no explanation proffered by the FAA regarding the age ofthe filings. In addition to the Motions herein, the issue(s) raised by the delay in filing this case with the Office ofHearings, and the age ofthis case, will be briefly addressed in this Order. Discussion 1. The FAA's Inferred Motion to Amend Four (4) years ago, the FAA filed with the FAA Hearing Docket a February 16, 2011 Motion to Deem Allegations Admitted ("Motion to Deem"), in which it requested full dispositive relief. The FAAhas not withdrawn this Motion or moved for amendment. Instead, two (2) years ago, the FAA filed with the Hearing Docket a more recent, February 25, 2013 Motion for Partial Decision ("Motion") in which itrequested only part ofthe dispositive reliefthat it had previously requested in its 2011 Motionto Deem.

' :; In short, the FAAhas filed with the FAA Hearing Dockettwo similar Motions in this case, dated two (2) years apart. Both Motions seek dispositive relief, on the grounds that thepro 

### se Respondent, Mr. Robert Ziege, failed to file a timely Answerto the FAA's March 6, 2009

1For example, the Certificate ofService for the February 25, 2013 Motion did not list the name ofany Judge, and did not list the address ofthe Office ofHearings for receipt ofa copy ofthe filed documents.

2 For example, the February 25,2013 Motion for Partial Decision noted on page one: "Judge [Unassigned)." On that same cover page, at the top right hand side ofthe case caption, the spaces identified for the "FAA DocketNo." and assigned "Judge" remained blank. The Certificate ofService for this February 25, 2013 Motion also failed to list the name ofany Judge, or the address ofthe Office ofHearings for receipt ofservice ofthe documents. Page 2 of 10Complaint. However, the more recent Motion seeks only part ofthe reliefthat the older Motion requested. Thus, it appears that the FAA has "replaced" its 2011 Motion to Deem with the more recently filed February 25, 2013 Motion. This action is an inferred motion to amend. In general, amending motions before a court issues aruling is liberally allowed. See generally Steven Baicker-McKee, et al., Federal Civil Rules Handbook, 336 (West 2012). There is no reason proffered to the courtby thepro se Respondent, or contained in the record, to deny an amendment to the FAA's 2011 Motion to Deem. As a result, the February 25, 2013 Motion is deemed to be an inferred amendmentto the 2011 Motion to Deem, and the February 25,2013 Motion is the only motionbefore the court for consideration. !d.; see, e.g., Ledezma v. Wells Fargo BankN.A., No. H-1-1806, 2014 WL 6674285, at *2 (S.D. Tex. Nov. 24, 2014). 2. The FAA's February 25,2013 Motion In the FAA's most recent request for relief, dated February 25, 2013 (i.e., two years ago), the FAA argued it should be granted a decision on the merits ofthe violation, on the grounds that theprose Respondent, Mr. Robert Ziege, had failed-four (4) years prior to the Motion-to file a timely Answer to the FAA's 2009 Complaint. The FAA asserted that Mr. Ziege "received" the March 6, 2009 Complaint on March 9, 2009, and failed to file a timely Answer on or before April 11, 2009. The FAA's Motion, ifgranted, would find the violations meritorious, but leave

. the proposed civil penalty for further adjudication.3 A) FAA Has the Burden of Proof Pursuantto 14 C.P.R.§ 13.224(b), the FAAhas the burden ofproofin demonstrating proper service and receipt ofits March 6, 2009 Complaint. See also, Baicker-McKee, et.al, at 233 (The burden ofproofofservice is on the party attempting service.) B) FAA 's Missing Exhibits The FAA did not attach to its February 25, 2013 Motion any evidence to demonstrate proofofservice ofthe Complaint on Mr. Ziege on March 9, 2009. Instead, the FAA asserted that

3 It should be noted thatthere is a problem with the Complaint's request for civil penalty. Specifically, the Complaint inconsistently identified the proposed civil penalty as both zero("$.") (Complaint, I**~I** and 4**~Ill** (3)) and as "$1,000" (Complaint, 4**~III** (Conclusion)). ' Page 3 of 10its February 16, 2011 Motionto Deem-referenced as "Exhibit 1" -was sufficient proof. (Motion, 2**~4).** However, Exhibit 1was not attachedto the Motion. In its February 25,2013 Motion, the FAA also asserted that its earlier February 16,2011 Motion to Deem hadbeen received by Mr. Ziege on February 25, 2011, and referenced the court to "Exhibit 2." (Motion, 2**~4).** However, "Exhibit 2" was not attached, and as ofthe date ofthis Order (February 24, 2015), it remains missing from the record. C) FAA 

### 's Proof of Service of 2009 Complaint Althoughthe FAA's "Exhibit 1"was not attached to its February 25,2013 Motion, the FAA Hearing Dockethad faxed to the Office ofHearings on November 14, 2014 a copy ofthe FAA's February 16,2011 Motionto Deem. Thus, the content of"Exhibit 1" is part ofthe record. In the FAA's earlier, February 16,2011 Motion to Deem, it referenced two attachments as proofofservice ofthe ComplaintonMr. Ziege on March 9, 2009, specifically: (i) a Certificate ofSe.rvice ("Attachment 1"); and, (ii) a copy ofa U.S. Certified Mail receipt (No. 7005 0390 0006 0974 4590) ("Attachment 2"). These two Attachments showed that the FAA had mailed a copy ofthe Complaintby certified mail on March 6, 2009, addressed to Mr. Robert Ziege, at the following address "4140 Clemmons Road, Suite 370, Clemmons, NC 27012." (Mot. to Deem, Attach 2.) Subsequently, on "3/9" (year unstated and unknown), an individual named "Babe Carter" accepted delivery ofthis mailing. (!d.) D) FAA'sArgumentsandMr. Ziege 's Response

·The FAA argued there was a clear default in this case, because thepro se Respondent, Mr. Ziege, had never filed an Answerto the Complaint and had also failed to respond to the FAA'sFebruary 16,2011 Motionto Deem. (Motion, 2**~** 4.) However, the records that the FAA Hearing Docket Clerk faxed to the Office ofHearings onNovember 19, 2014, showthat three years earlier, on March 2, 2011 (i.e., fourteen days after the February 16, 2011 Motion to Deem was filed with the HearingDocket), Mr. Ziege did file a one-page Letter with the Hearing Docket, which directly responded to the FAA's 2011 Motion to Page 4 of 10Deem. (NB: It should be noted that there is no record showing that Mr. Ziege, aprose Respondent, served a copy ofhis March 2, 2011 Letter onthe FAA attorney or the Office of Hearings.) In his March 2, 2011 Letter, Mr. Ziege asserted thathe had never received the FAA's 4

. March 9, 2009 Complaint. He did not have "any knowledge of'the FAA's March 6, 2009 Complaint. Although Mr. Ziege utilized in his March 2, 2011 Letter the same "Clemmons Road" address utilized by the FAA in its 2009 U.S. Certified Mail Receipt, Mr. Ziege challenged the FAA's assertion that service ofthe Complainthad ever occurred in 2009. (Mot. to Deem, Attach 2; and 3/2/11 Letter, 1.) Mr. Ziege also noted that when he had previouslytriedto discuss and resolve the matter (no FAA individual specifically named or dates ofdiscussion identified), he had been told that "no one knows where the paper work is." (3/2111 Letter, 1.) E) Proof of Service Insufficient The FAA did not submit any proofor information as to who Babe Carter might be, or whatrelation (ifany) Babe Carterhad to Mr. Ziege. There is also no proofregarding what year Babe Carter accepteddelivery ofthe certified mail. Based onthe record before the court-and absent speculation-the court might assume thatthe delivery acceptance ofthe FAA's 2009 Complaintby Babe Carter on "3/9"by U.S. Certified Mail receipt (No. 7005 0390 0006 0974 4590) occurred after March 6, 2009 (the date ofFAA mailing) and before February 16,2011 (the date the receipt was attached to the FAA's Motion to Deem). (Mot. to Deem, Attach 2.) The courtmight also assume that Babe Carter's acceptance ofthe Complaint occurred on either March 9, 2009 or March 9, 2010. As of2015, no formal answer has ever been filed by Mr. Ziege. Thus, either date-ifthe FAA's proofofservice is accepted-could showthat Mr. Ziege failed to file a timely answer. However, even ifit is assumed that delivery ofthe 2009 Complaint was accepted on March 9, 2010, it was not accepted by Mr. Ziege, or anyone that could be reasonably presumed by name to be connected with him. There is also evidence in the record that disputes service. Mr. Ziege filed a signed, timely response with the FAA Hearing Docket on March 2, 2011, fourteen

4 Itis noted that the FAA's Certificate ofService, attached to the Motion to Deem, stated thatthe documents had been mailed on February 16, 2011 to Mr. Ziege at the same address that had been uti!ized in 2009, to wit: 4140 Clemmons Road, Suite 370, Clemmons, NC 27012. Page 5 of 10days after the FAA filed its February 16,2011 Motion to Deem, and specifically denied ever receiving the Complaint-eitherin 2009 or thereafter. (3/2/11 Letter, 1.) Mr. Ziege also complained abouthis inabilityto resolve the matter with FAA representatives, and provided both his current address andhis telephone number for contact. (3/2/11 Letter, 1.) This demonstrated Mr. Ziege's interest and attempts to participate in the matter-which contradicted the FAA's arguments that Mr. Ziege was non-responsive and should be held in default status. Two years later, in its February 25, 2013 Motion, the FAA asserted that it had served its 2013 Motion by certified mail onMr. Ziege athis address ofrecord. Butthe FAA did not attach any proofofcertified mailing or receipt ofmailing ofthe motion on Mr. Ziege (or this court). In addition, the FAA did not provide any information to support a good faith beliefthat Mr. Ziege's last known address in 2011 still remained current and accurate for service attempts in 2013 (or thereafter). Thus, Mr. Ziege's lack ofresponseto the 2013 Motion cannot be assumed to be deliberate, either in 2013 or as ofthe date ofthis 2015 Order. Takingthe record as awhole, which includes consideringthe March 2, 2011 testimonial response of.Mr. Ziege, the FAA has failed to sufficiently prove that it effectuated service ofits March 6, 2009 Complaint onMr. Ziege, either on March 9, 2009 (as alleged) or at any time thereafter. 'i. 3. Providing the Judge with Copies ofLitigation Documents The amount oftimethe FAA allowed this caseto remain dormant is troubling. As already demonstratedherein, Mr. Ziege'sRequest was served approximately five and a half(5 Yz) years ago, on March 1, 2009, on both the FAA Hearing Docket and the FAA Southern Regional Counsel. However, neitherthe FAA Hearing Docket northe Regional Counsel promptly forwarded, served, or filed a copy ofthe Request or the Complaint with the Office ofHearings. In addition, copies ofsubsequent Motions filed by the FAA with the FAA Hearing Docket were not promptly forwarded, served, or filed with the Office ofHearings. Itis noteworthythat in Mr. Ziege's March 2, 2011 Letter, he reported being told (no individual specifically named) that ifhe had any concerns about the case orthe FAA's proposed fine, he should "tell itto ajudge." (3/2/11 Letter, 1.) Assuming such advice had been proffered,**·~~** Page 6 of 10it wouldhave been impossible for Mr. Ziege to pursue, since in 2011 the case had not been filed withthe Office ofHearings, and no Judge had been assigned to the case.

· Itis well-established that original litigation documents in civil penalty proceedings are filed with the FAA Hearing Docket, which is the custodian ofthe record. 14 C.P.R. §13.21O(a). But in order for the FAA's adjudication proceedings to be fair, efficient and effective, this court -whichis not part ofthe FAA- also needs be notified, preferably with a contemporaneously filed copy. See, 55 Fed. Reg. 27551 (Jul. 3, 1990) ("[U]nder the rules ofpractice, the adjudication function is performed initially by administrative lawjudges employed by the Office ofthe Secretary oftheDepartment ofTransportation.") and 55 Fed. Reg. 27551 (Jul. 3, 1990)("[A]dministrative lawjudges

...are fully capable ofensuring a fair hearing

...they are completely independent

...ofthe FAA.") 

### A) FAA Commitment to Fair andExpeditiousAdjudication

In 1988, when the FAAfirst published its newrules ofpractice for civil penalty proceedings, it emphasizedits commitmentto the rule oflaw and due process: The rules are intended to provide an appropriate level ofprocedural formality in civil penalty proceedings, focus attention on the rights ofindividuals subjectto civil penalties, and ensure that due process is afforded those individuals during the civil penalty enforcement process. 53 Fed. Reg. 34646 (Sept. 7, 1988) The FAA assertedthat administrative civil penalty prosecution (in lieu ofprosecution in the U.S. District Court) would "strengthen"the FAA's safety enforcement, because it allowed the FAA to avoid the "lengthyprocess" ofreferral ofcases to the U.S. Attorney. 53 Fed. Reg. 34647 (Sept. 7, 1988). Thus, once an administrative civil penalty action was initiated, it was to proceed within a certain period oftime, to provide both "effective" safety enforcement, and to protectthe fundamental due process rights ofrespondents. 

### I d. Two (2) years later, in 1990,the FAA emphasized and reiterated that all parties shared an interest in "effective and expeditious" adjudication, 55 Fed. Reg. 1511 (April 20, 1990), that was "fair" to all. 55 Fed. Reg. 27549 (July 3, 1990). The FAA also reasserted its commitmentto

Page 7 of 10**provid~** prompt safety enforcementproceedings and "timely adjudication" by adopting a two year regulatory limitations periodto "initiate a case." 55 Fed. Reg. 27555 (July 3, 1990). 

### B) Notifying the Court of aNew Case Itis well-established that once a notice ofproposed civil penalty has been served upon a respondent, s/he must serve atimely request for hearing on both the FAA Hearing Docket and the FAA attorney who has issued the notice ofproposed civil penalty. 14 C.F.R. §§ 13.16(h) and 13.211. Within twenty (20) days ofreceipt ofthe request, the FAA agency attorney must serve a complaint with the Hearing Docket Clerk and on the respondent. (14 C.F.R. §13.210(a).) At this point, an administrative lawjudgeis appointed to act as an independent adjudicator over the proceedings. 14 C.F.R. § 13.202. However, the FAA rules ofpracticehave never specified a time limit for when the FAA notifies thejudge about the new case, or who at the FAA is responsible for filing the complaint and copies ofall pertinent pleadings with the Office ofHearings. In order to provide fair, efficient, and expeditious adjudication service, the court needs to be promptly notified ofany new case. Normally this has informally occurred, when the FAA Hearing Docket Clerkfaxes or delivers the request and complaintto the Office ofHearings. But no rules ofpractice have everbeen adopted to ensure such action is taken, orto specify by whom. 5 The facts ofthis particular case highlight the problems and delaythat easily occur, when no one atthe FAAis specifically deemedresponsible to ensure that this independent court is notified ofa new case proceeding.

5 This Order does not address the potential issue oflaches, which remains reserved for the parties to discuss. It should also benoted that the question ofwhether the Clerk or the agency attorney should be held responsible for promptly servingthe Office ofHearings with the parties' initial pleadings has never been addressed. The FAA Administrator has previously held that even though the FAA Hearing Docket Clerk is an FAA employee, the Clerk is employed in a separate department than the FAA regional counsel's office. As a result, the Clerk should not be automatically deemed an "agent" ofthe FAA regional attorney for service attempts by the respondent. Medel, FAA OrderNo. 93-13, 1993 WL 833107 (Mar. 25, 1993). In the alternative, since the FAA attorney is responsible for prosecution ofthe case (14 C.F.R. § 13.203(a)), it might also be argued that the agency attorney, and not the FAA Hearing Docket Clerk, is ultimately responsible to ensure that the Office ofHearings is notified. · Page 8 of 10C) NotifYing the Court of Motions and Other Requestsfor Relief Whentherules ofpractice were originally promulgated, the FAA reasonably required thatuponthe FAAAdministrator's appointment ofajudge, any document tendered to theFAA's Hearing Docket during the adjudication process also had to be copied and tendered to the assigned administrative lawjudge. 14 C.F.R. § 13.210(a) provided: A person tendering a document for filing shall personally deliver ormail the signed original and one copyto each document to the Hearing Docket

.... After an administrative lawjudgehas been assigned to the proceedings, a person shall personally deliver ormail the signed original to the hearing docket clerk and shall serve a copy ofeach documenton each party andthe administrative lawjudge. 14 C.F.R. § 13.210(a) (1988). Two years later, however, the FAA removed this general directive requiring service of document copies onthe administrative lawjudge, when it made multiple "minor editorial revisions," to the 14 C.F.R. § 13.210(a). 55 Fed. Reg. 27548,27557-58 (Jul. 3, 1990). No explanation was providedfor the removal ofthis general directive language, and it mayhave been an unintended error. It is difficult to comprehend how an independentjudge can ensure fair, efficient, and effective adjudication ifthe parties don't file copies oftheir pleadings and motions withthejudge. Fortunately, there are multiple FAA rules ofpractice that require filing copies of adjudication documents directly with thejudge. For example (not inclusive), a party who wishes an extension oftime files with thejudge, 14 C.F.R. §13.213(b), a party who amends pleadings must file with thejudge, 14 C.F.R. §13.214(a), and:parties who voluntarily enter into ajoint procedural or discovery schedule file the same with thejudge, 14 C.F.R. §13.217(b). More importantlyhowever in this case, aparty who is applying for reliefby motion is requiredto file it "withthe administrative lawjudge." 14 C.F.R. § 13.218(a). As therecord herein demonstrates, there were two motions filed with the FAA Hearing Docket by the FAA in this case (i.e., in 2011 and 2013), yet no copies ofeither motion was served, forwarded, or filed with the court- until November 14, 2014. Atthe time ofeach motion filing, the FAA attorney requesting reliefappeared to know that nojudgehad been assigned, but took no action to ensure that the Office ofHearings was notified ofthe case or about the FAA's Motion. It was not until Page 9 of 10the year 2014 when these omissions were noticed and cured. To avoid any further delays in this case, the parties need to concurrently provide copies ofany documents filed with the FAA Hearing Docket Clerkwiththis court. Conclusion Having reviewed the case file, all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised: IT IS HEREBY ORDERED: 1. The FAA's February 25, 2013 Motion for Partial Decision is deemed to be an inferred motion to amend its February 16, 2011 Motion to Deem Allegations Admitted.
2. The FAA'sFebruary 25, 2013 Motion for Partial Decision is accepted as an amended motion.
3. The FAA'sFebruary 25, 2013 Motion for Partial Decision is denied. 4. Pursuantto 14 C.F.R. §13.210, 14 C.F.R. §13.211, and 14 C.F.R. §13.218 (a), all further documents, filed withthe FAA Hearing Docket by eitherthe FAA or Mr. Ziege in this action, mustbe copied and contemporaneously filed with the undersigned at the Office of Hearings. Faxing a copy ofa document is acceptable. Attached to this Order is a sample service list, identifying the court's name, address and fax number. 5. Upon receipt ofthis Order, either party may move for additional relief. 6. Ifeither partyhas questions regarding the procedures contained in this Order, they may contact Mr. Cody Smith, Attorney-Advisor at the Office ofHearings (202-366-6941).

Attachment: Service List Page 10 of 10SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W10006

Mr. Deitrick 

### H. Johnson 

### Complainant's Counsel Federal AviationAdministration Office ofthe Regional Counsel Southern Region PO Box 20636 Atlanta, GA 30320-0631 TEL: 404-305-5200 FAX: 404-305-5223 Mr. Robert Zeige 

### Respondent 4140 Clemmons Road Suite 370 Clemmons,NC 27012 TEL: 336-793-1913 Judge J.E. Sullivan 

### US. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation ONE COPY

1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 DocketNo. FAA-2009-0182 (Civil Penalty Action)

6 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.