Agency Wrongfully Cited Pilots For Infractions
Aviation Law Experts, LLC tells ANN the Chief Administrative Law
Judge of the National Transportation Safety Board (NTSB) recently
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. The ruling came after the NTSB
determined the FAA erred in citing the pilots for two infractions
related to a March 2008 complaint.
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 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, an 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.
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 pilots and aircraft owner were represented by Gregory
Winton, President of Aviation Law Experts and a former FAA senior
trial attorney. According to Winton, "the FAA has once again wasted
valuable agency resources prosecuting frivolous enforcement
actions." Since 2005, Winton has received seven EAJA awards against
the FAA on behalf of his clients.