I 

I 

1 

I 

In the Matter of: 

ROBERT ZIEGE 

Respondent 

SERVED: February 24, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

) 

) Docket No. FAA-2009-0182 

) 

) Case No. 2009S0700030 

) 

ORDER GRANTING AMENDMENT OF MOTION, DENYING THE 

MOTION FOR PARTIAL DECISION, AND DIRECTING THE PARTIES 

TO FILE COPIES OF DOCUMENTS WITH THE COURT 

On November 19,2014, the Federal Aviation Administration ("FAA") Hearing Docket 

Clerk faxed to the U.S. Department of Transportation's Office of Hearings the following 

documents: 

1. A Request for Hearing, dated March 1, 2009, signed by prose Respondent Mr. 

Robert Ziege, 

2. An FAA Complaint, dated March 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, signed by Respondent Mr. Robert Ziege, 

5. A Notice of Appearance, dated February 25, 2013, signed by an FAA agency 

attorney, and 

6. A Motion for Partial Decision, dated February 25, 2013, signed by an FAA agency 

attorney. 

Brief Note Regarding Age of Case 

The documents listed above date back approximately six (6) years, to March 1, 2009, 

when the pro se Respondent, Mr. Robert Ziege, served a Request for Hearing ("Request") on 

both the FAA Hearing Docket and the FAA Southern Regional Counsel. (Request, 1.) However, 
the first notification this court had of Mr. Ziege's Request, or the FAA's Complaint and Motions, 

was on November 19, 2014 (i.e., five and a half (5 Yz) years after the Request was served), when 

the FAA Hearing Docket Clerk faxed the documents (identified above) to the Office of Hearings. 

Although the two FAA Motions specifically requested relief from an Administrative Law 

Judge (i.e., Motions filed in 2011 and 2013), the FAA's attached Certificates of Service in 2011 

and 2013 clearly demonstrated that the Office of Hearings was not served with either request. 1 

The Motions also specifically noted that no FAA Docket Number had ever been assigned, and no 

Judge had been appointed to the case. 2 

Since the FAA Hearing Docket Clerk faxed the material on November 19, 2014 to the 

Office of Hearings, no other documents have been filed by either party. There has been no 

explanation proffered by the FAA regarding the age of the filings. In addition to the Motions 

herein, the issue(s) raised by the delay in filing this case with the Office of Hearings, and the age 

of this 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 FAA has 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 it requested only part of the dispositive relief that it had previously 

requested in its 2011 Motion to Deem. 

' :; 

In short, the FAA has filed with the FAA Hearing Docket two similar Motions in this 

case, dated two (2) years apart. Both Motions seek dispositive relief, on the grounds that the pro 

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

1 For example, the Certificate of Service for the February 25, 2013 Motion did not list the name of any Judge, and 

did not list the address of the Office of Hearings for receipt of a copy of the 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 of the case caption, the spaces identified for the "FAA Docket No." and 

assigned "Judge" remained blank. The Certificate of Service for this February 25, 2013 Motion also failed to list the 

name of any Judge, or the address of the Office of Hearings for receipt of service of the documents. 

Page 2 of 10 
Complaint. However, the more recent Motion seeks only part of the relief that 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 a ruling is liberally allowed. See 

generally Steven Baicker-McKee, et al., Federal Civil Rules Handbook, 336 (West 2012). There 

is no reason proffered to the court by the pro 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 amendment to the 2011 Motion to Deem, and the February 25,2013 

Motion is the only motion before the court for consideration. !d.; see, e.g., Ledezma v. Wells 

Fargo Bank N.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 of the violation, on the grounds that 

the prose 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, if granted, would find the violations meritorious, but leave . 

the proposed civil penalty for further adjudication.3 

A) FAA Has the Burden of Proof 

Pursuant to 14 C.P.R.§ 13.224(b), the FAA has the burden of proof in demonstrating 

proper service and receipt of its March 6, 2009 Complaint. See also, Baicker-McKee, et.al, at 

233 (The burden of proof of service 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 

proof of service of the Complaint on Mr. Ziege on March 9, 2009. Instead, the FAA asserted that 

3 It should be noted that there 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 10 
its February 16, 2011 Motion to Deem-referenced as "Exhibit 1" -was sufficient proof. 

(Motion, 2 ~4). However, Exhibit 1 was not attached to the Motion. 

In its February 25,2013 Motion, the FAA also asserted that its earlier February 16,2011 

Motion to Deem had been 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 of the date ofthis 

Order (February 24, 20 15), it remains missing from the record. 

C) FAA 's Proof of Service of 2009 Complaint 

Although the FAA's "Exhibit 1" was not attached to its February 25,2013 Motion, the 

FAA Hearing Docket had faxed to the Office of Hearings on November 14, 2014 a copy of the 

FAA's February 16,2011 Motion to 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 proof of service of the Complaint on Mr. Ziege on March 9, 2009, specifically: (i) a 

Certificate of Se.rvice ("Attachment 1 "); and, (ii) a copy of a 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 Complaint by 

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 of this 

mailing. (!d.) 

D) FAA's Arguments and Mr. Ziege 's Response 

· The FAA argued there was a clear default in this case, because the pro se Respondent, 

Mr. Ziege, had never filed an Answer to the Complaint and had also failed to respond to the 

FAA's February 16,2011 Motion to Deem. (Motion, 2 ~ 4.) 

However, the records that the FAA Hearing Docket Clerk faxed to the Office of Hearings 

on November 19, 2014, show that three years earlier, on March 2, 2011 (i.e., fourteen days after 

the February 16, 2011 Motion to Deem was filed with the Hearing Docket), Mr. Ziege did file a 

one-page Letter with the Hearing Docket, which directly responded to the FAA's 2011 Motion to 

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Deem. (NB: It should be noted that there is no record showing that Mr. Ziege, a prose 

Respondent, served a copy of his March 2, 2011 Letter on the FAA attorney or the Office of 

Hearings.) 

In his March 2, 2011 Letter, Mr. Ziege asserted that he 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 Complaint had ever occurred in 2009. (Mot. to Deem, Attach 

2; and 3/2/11 Letter, 1.) Mr. Ziege also noted that when he had previously tried to discuss and 

resolve the matter (no FAA individual specifically named or dates of discussion 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 proof or information as to who Babe Carter might be, or 

what relation (if any) Babe Carter had to Mr. Ziege. There is also no proof regarding what year 

Babe Carter accepted delivery of the certified mail. Based on the record before the court-and 

absent speculation-the court might assume that the delivery acceptance of the FAA's 2009 

Complaint by Babe Carter on "3/9" by U.S. Certified Mail receipt (No. 7005 0390 0006 0974 

4590) occurred after March 6, 2009 (the date of FAA 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 

court might also assume that Babe Carter's acceptance of the 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-if the FAA's proof of service is accepted-could show that Mr. Ziege 

failed to file a timely answer. 

However, even if it is assumed that delivery of the 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 It is noted that the FAA's Certificate of Service, attached to the Motion to Deem, stated that the 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. 

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days after the FAA filed its February 16,2011 Motion to Deem, and specifically denied ever 

receiving the Complaint-either in 2009 or thereafter. (3/2/11 Letter, 1.) Mr. Ziege also 

complained about his inability to resolve the matter with FAA representatives, and provided both 

his current address and his 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 on Mr. Ziege at his address of record. But the FAA did not attach 

any proof of certified mailing or receipt of mailing of the motion on Mr. Ziege (or this court). In 

addition, the FAA did not provide any information to support a good faith belief that 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 ofresponse to the 2013 Motion cannot be assumed to be 

deliberate, either in 2013 or as of the date of this 2015 Order. 

Taking the record as a whole, which includes considering the March 2, 2011 testimonial 

response of.Mr. Ziege, the FAA has failed to sufficiently prove that it effectuated service ofits 

March 6, 2009 Complaint on Mr. Ziege, either on March 9, 2009 (as alleged) or at any time 

thereafter. 'i. 

3. Providing the Judge with Copies of Litigation Documents 

The amount oftime the FAA allowed this case to remain dormant is troubling. As already 

demonstrated herein, Mr. Ziege's Request 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, neither the FAA Hearing Docket nor the Regional Counsel promptly 

forwarded, served, or filed a copy of the Request or the Complaint with the Office of Hearings. 

In addition, copies of subsequent Motions filed by the FAA with the FAA Hearing Docket were 

not promptly forwarded, served, or filed with the Office of Hearings. 

It is noteworthy that in Mr. Ziege's March 2, 2011 Letter, he reported being told (no 

individual specifically named) that if he had any concerns about the case or the FAA's proposed 

fine, he should "tell it to a judge." (3/2/11 Letter, 1.) Assuming such advice had been proffered, ·~~ 

Page 6 of 10 
it would have been impossible for Mr. Ziege to pursue, since in 2011 the case had not been filed 

with the Office of Hearings, and no Judge had been assigned to the case. 

· It is well-established that original litigation documents in civil penalty proceedings are 

filed with the FAA Hearing Docket, which is the custodian of the record. 14 C.P.R. § 13.21 O(a). 

But in order for the FAA's adjudication proceedings to be fair, efficient and effective, this court 

-which is not part of the FAA- also needs be notified, preferably with a contemporaneously 

filed copy. See, 55 Fed. Reg. 27551 (Jul. 3, 1990) ("[U]nder the rules of practice, the 

adjudication function is performed initially by administrative law judges employed by the Office 

ofthe Secretary ofthe Department ofTransportation.") and 55 Fed. Reg. 27551 (Jul. 3, 

1990)("[A]dministrative law judges ... are fully capable of ensuring a fair hearing ... they are 

completely independent ... of the FAA.") 

A) FAA Commitment to Fair and Expeditious Adjudication 

In 1988, when the FAA first published its new rules of practice for civil penalty 

proceedings, it emphasized its commitment to the rule of law and due process: 

The rules are intended to provide an appropriate level of procedural formality in civil 

penalty proceedings, focus attention on the rights of individuals subject to 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 asserted that administrative civil penalty prosecution (in lieu of prosecution in 

the U.S. District Court) would "strengthen" the FAA's safety enforcement, because it allowed 

the FAA to avoid the "lengthy process" ofreferral of cases 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 of time, to provide both "effective" safety enforcement, and to 

protect the fundamental due process rights of respondents. 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 commitment to 

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provid~ prompt safety enforcement proceedings and "timely adjudication" by adopting a two 

year regulatory limitations period to "initiate a case." 55 Fed. Reg. 27555 (July 3, 1990). 

B) Notifying the Court of a New Case 

It is well-established that once a notice of proposed civil penalty has been served upon a 

respondent, s/he must serve a timely request for hearing on both the FAA Hearing Docket and 

the FAA attorney who has issued the notice of proposed civil penalty. 14 C.F.R. §§ 13.16(h) and 

13.211. Within twenty (20) days of receipt of the 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 law judge is appointed to act as an independent adjudicator over the 

proceedings. 14 C.F.R. § 13.202. 

However, the FAA rules ofpractice have never specified a time limit for when the FAA 

notifies the judge about the new case, or who at the FAA is responsible for filing the complaint 

and copies of all pertinent pleadings with the Office of Hearings. 

In order to provide fair, efficient, and expeditious adjudication service, the court needs to 

be promptly notified of any new case. Normally this has informally occurred, when the FAA 

Hearing Docket Clerk faxes or delivers the request and complaint to the Office of Hearings. But 

no rules of practice have ever been adopted to ensure such action is taken, or to specify by 

whom. 5 The facts of this particular case highlight the problems and delay that easily occur, when 

no one at the FAA is specifically deemed responsible to ensure that this independent court is 

notified of a new case proceeding. 

5 This Order does not address the potential issue of laches, which remains reserved for the parties to discuss. It 

should also be noted that the question of whether the Clerk or the agency attorney should be held responsible for 

promptly serving the Office of Hearings 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 

Order No. 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 of Hearings is notified. · 

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C) NotifYing the Court of Motions and Other Requests for Relief 

When the rules of practice were originally promulgated, the FAA reasonably required 

that upon the FAA Administrator's appointment of a judge, any document tendered to the FAA's 

Hearing Docket during the adjudication process also had to be copied and tendered to the 

assigned administrative law judge. 14 C.F.R. § 13.210(a) provided: 

A person tendering a document for filing shall personally deliver or mail the 

signed original and one copy to each document to the Hearing Docket .... After 

an administrative law judge has been assigned to the proceedings, a person shall 

personally deliver or mail the signed original to the hearing docket clerk and shall 

serve a copy of each document on each party and the administrative law judge. 

14 C.F.R. § 13.210(a) (1988). 

Two years later, however, the FAA removed this general directive requiring service of 

document copies on the administrative law judge, 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 provided for the removal of this general directive language, and it may have 

been an unintended error. It is difficult to comprehend how an independent judge can ensure fair, 

efficient, and effective adjudication if the parties don't file copies of their pleadings and motions 

with the judge. 

Fortunately, there are multiple FAA rules of practice that require filing copies of 

adjudication documents directly with the judge. For example (not inclusive), a party who wishes 

an extension oftime files with the judge, 14 C.F.R. §13.213(b), a party who amends pleadings 

must file with the judge, 14 C.F.R. §13.214(a), and:parties who voluntarily enter into ajoint 

procedural or discovery schedule file the same with the judge, 14 C.F .R. § 13 .217(b ). 

More importantly however in this case, a party who is applying for relief by motion is 

required to file it "with the administrative law judge." 14 C.F.R. § 13.218(a). As the record 

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 of either motion was served, forwarded, or filed 

with the court- until November 14, 2014. At the time of each motion filing, the FAA attorney 

requesting relief appeared to know that no judge had been assigned, but took no action to ensure 

that the Office of Hearings was notified ofthe case or about the FAA's Motion. It was not until 

Page 9 of 10 
the year 2014 when these omissions were noticed and cured. To avoid any further delays in this 

case, the parties need to concurrently provide copies of any documents filed with the FAA 

Hearing Docket Clerk with this 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's February 25, 2013 Motion for Partial Decision is accepted as an amended 

motion. 

3. The FAA's February 25, 2013 Motion for Partial Decision is denied. 

4. Pursuant to 14 C.F.R. §13.210, 14 C.F.R. §13.211, and 14 C.F.R. §13.218 (a), all further 

documents, filed with the FAA Hearing Docket by either the FAA or Mr. Ziege in this 

action, must be copied and contemporaneously filed with the undersigned at the Office of 

Hearings. Faxing a copy of a document is acceptable. Attached to this Order is a sample 

service list, identifying the court's name, address and fax number. 

5. Upon receipt of this Order, either party may move for additional relief. 

6. If either party has questions regarding the procedures contained in this Order, they may 

contact Mr. Cody Smith, Attorney-Advisor at the Office of Hearings (202-366-6941 ). 

Attachment: Service List 

Page 10 of 10 
SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W10006 

Mr. Deitrick H. Johnson 

Complainant's Counsel 

Federal Aviation Administration 

Office of the 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 Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

ONE COPY 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

Docket No. 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.