April 1, 2008

The Chief Administrative Law Judge of the National Transportation Safety Board (NTSB) Ordered the Federal Aviation Administration (FAA) to pay a charter pilot $35,516.39 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 No. 328- EAJA-SE-17972). Under the EAJA, the FAA shall award to the prevailing party, fees and other expenses incurred, unless the agency was substantially justified.

The attorney fee award follows a voluntary withdrawal of the FAA's Order of Suspension issued against the Airline Transport Pilot Certificate of a New York charter pilot. The FAA initially alleged that the pilot operated an aircraft in an unairworthy condition and in a careless or reckless manner. The FAA subsequently charged that the pilot violated 14 C.F.R. section 135.65(b), which states that the pilot in command shall enter or have entered in the aircraft maintenance log each mechanical irregularity that comes to the pilot's attention during flight time.

On July 31, 2007, the FAA issued an amended Order of Suspension withdrawing all allegations, with the exception of section 135.65(b). Specifically, the amended Order alleged that during a flight from Key West, Florida to New York, the fuel transfer system malfunctioned. According to the FAA, the pilot failed to make a record of the fuel system malfunction in the aircraft maintenance log. On December 5, 2007, one day before the scheduled hearing, the FAA withdrew its complaint.

In his Order awarding EAJA fees, the law judge found that "there is no evidence that the fuel transfer system malfunctioned." Upon arrival in New York, the Director of Maintenance performed an operational check of the fuel transfer system in order to confirm that the system did not malfunction. He subsequently made an entry in the aircraft maintenance log. As a result, the law judge found that the pilot did have a log entry made in accordance with the regulation. Specifically, he stated that "the [FAA] Administrator lacked substantial justification as he never possessed or set forth any evidence to demonstrate that the aircraft was flown in an unairworthy condition," and "the Administrator was well aware that the fuel transfer system operated normally." Thus, he found that "prosecution of this matter lacked a reasonable basis in fact," and "the agency proceeded on a weak and tenuous basis with a flawed investigation bereft of any meaningful evidence." Accordingly, the application for attorney fees and expenses was granted.

The pilot was represented by Gregory Winton, a former FAA trial attorney, who has been practicing aviation law for the past 19 years. Winton is the President of Aviation Law Experts, LLC, a national law practice and consulting firm based in the Washington, DC metropolitan area. He is a licensed commercial pilot and certified flight instructor.

According to Winton, "this is a rare decision. Over the past two years, the NTSB has granted only one EAJA award. In this case, the FAA has clearly wasted valuable agency resources to prosecute a frivolous action." Over the past four years, Winton has received five EAJA awards against the FAA. In a sixth case where the chief law judge granted an EAJA award, the NTSB reversed on appeal.

Media Contact:
Gregory S. Winton, Esq.
AviationLawExperts.com
Toll Free: 1-877-4-AIR-LAW
Phone: 301-529-5660 (Direct)
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