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FAA Ordered to Pay Attorney Fees and Expenses

Written by thomas · Filed Under Aeronautics News 

September 3, 2008

thomas

WASHINGTON, Sept. 3 /PRNewswire/ — The Chief Administrative Law Judge
of the National Transportation Safety Board (NTSB) ordered the Federal
Aviation Administration (FAA) to pay two corporate pilots $12,475.00 for
attorney fees and expenses pursuant to the Equal Access to Justice Act
(“EAJA”) 49 C.F.R., section 826.1 et. seq. (NTSB Docket Nos.
331-EAJA-SE-18212 and 332-EAJA-SE-18213). Pursuant to the EAJA, the FAA
shall award to the prevailing party, fees and other expenses incurred,
unless the agency was substantially justified. By Order dated August 29,
2008, the Chief Judge stated that “the agency proceeded on a weak and
tenuous basis with a flawed investigation bereft of any meaningful evidence
against applicants, this highlights the lack of substantial justification
not having a reasonable basis in both law and fact. Therefore, applicants’
application for attorney fees and expenses must be granted.” The EAJA award
followed a withdrawal of the suspension orders issued against the Airline
Transport Pilot Certificates of two Learjet pilots.

The FAA initially alleged that operation of an aircraft “without the
two-place divan installed” rendered the aircraft unairworthy. The FAA
further alleged that the aircraft was operated “when the ELT (emergency
locator transmitter) was not operational.” As a result, the pilots were
charged with a violation of 14 C.F.R. sections 91.7(a) (operation of an
unairworthy aircraft); 91.207(a)(2) (operation without an operable
emergency locator transmitter); and 91.13(a) (operating an aircraft in a
careless or reckless manner).

Prior to the flight, the Captain of the Learjet 60 model aircraft
contacted the FAA Flight Standards District Office (FSDO) in Albuquerque,
NM, in order to determine the proper procedure for removal of the divan.
The Captain was told by the FAA inspector to consult an airframe &
powerplant (A&P) mechanic with Inspection Authorization to have the seat
removed. Accordingly, a duly authorized A&P mechanic removed the divan,
recalculated the weight and balance of the aircraft, and prepared a
maintenance record returning the aircraft to service. Upon arrival at
Teterboro, NJ, local FAA inspectors determined that removal of the divan
was in violation of the regulations, alleging that a Supplemental Type
Certificate (STC) was required.

While at Teterboro, another A&P mechanic removed the ELT and performed
a battery inspection. The battery failed a bench test and a new battery was
ordered. While awaiting arrival of the new battery, the old battery was
placed back into the aircraft and the mechanic prepared a maintenance
record for the work performed. The FAA alleged that operation of the
aircraft without the new ELT battery installed was a violation of the
regulations.

On March 21, 2008, the FAA filed a complaint against each of the
pilots. The cases were consolidated and a hearing was scheduled for August
19, 2008. A related case was brought against the owner of the aircraft
seeking a $9,900.00 civil penalty. On June 17, 2008, the FAA withdrew its
civil penalty case. Three days later, the FAA withdrew all charges against
the pilots.

The pilots and aircraft owner were represented by Gregory Winton, a
former FAA senior trial attorney, who has been practicing aviation law for
the past 19 years. Winton is the President of Aviation Law Experts, LLC
(http://www.AviationLawExperts.com), a national law practice and consulting
firm based in the Washington, DC metropolitan area. According to Winton,
“the FAA has once again wasted valuable agency resources prosecuting
frivolous enforcement actions.” Since 2005, Winton has received seven (7)
EAJA awards against the FAA on behalf of his clients.

This release was issued through The Xpress Press News Service, merging
e-mail and satellite distribution technologies to reach business analysts
and media outlets worldwide. For more information, visit
http://www.XpressPress.com

SOURCE Aviation Law Experts, LLC

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