NTSB Denies FAA's Final Challenge to Pay More Than $124,000 for Attorney Fees and Expenses

WASHINGTON, D.C., September 28, 2010

On September 20th, the National Transportation Safety Board (NTSB) denied the Federal Aviation Administration's third challenge to an Order requiring reimbursement of attorney fees payable to Air Trek, Inc., a Florida based air ambulance operator, pursuant to the Equal Access to Justice Act ("EAJA") 49 C.F.R. 826. 

The FAA petitioned the NTSB to reconsider its Opinion and Order dated March 4, 2010, which held that the Administrator "should not have proceeded to a hearing on allegations of wrongdoing that he was not prepared to prove", and that the Agency refused to withdraw elements of its complaint until it "became painfully clear that the Administrator did not have sufficient evidence to establish its case."  At that time, the NTSB granted additional attorney fees incurred in response to the FAA's appeal.  The total award was increased to $121,991.34. (NTSB Order No. EA-5510). 

Last week, the NTSB denied the FAA's Petition for Reconsideration stating that the Agency's argument was "meritless" and its reliance upon case law was "misleading".  The NTSB further stated that "we reject the Administrator's argument that we erred in issuing a partial award of fees and expenses in this case."  In light of the denial of the FAA's Petition, the NTSB granted Air Trek's request for additional attorney fees in the amount of $2,553.97.  The total award is now $124,527.31, the largest in FAA history.  (NTSB Order No. EA-5551).  Pursuant to the NTSB Rules of Practice, the FAA cannot challenge the award further (49 C.F.R. Part 826).

Air Trek was represented by Gregory S. Winton, Esq. of The Aviation Law Firm and Aviation Law Experts, LLC.  Winton, a former FAA and DOJ trial attorney, has been practicing aviation law for the past 21 years.  Since 2005, he has been awarded more than $250,000 for reimbursement of attorney fees from the FAA.  According to Winton, "even though it has taken more than a year to obtain a final ruling on this EAJA award, the FAA has ignored all of my formal requests to receive payment.  This entire case has resulted from an abuse of prosecutorial discretion and is a tremendous waste of valuable government resources." 

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Source: Aviation Law Experts, LLC