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FAA ordered to pay attorney fees and expenses

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WASHINGTON, DC (September 3, 2008) – The Chief Administrative Law Judge of the National Transportation Safety Board (NTSB) ordered the Federal Aviation Administration (FAA) to pay two corporate pilots

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WASHINGTON, DC (September 3, 2008) – 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.

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Editor in chief is Linda Hohnholz.