Ruling Comes Following Return Of Air Carrier Certificate
In an unprecedented decision served
on August 27, the Honorable William A. Pope, II, NTSB
Administrative Law Judge, Ordered the FAA to pay a Florida based
air ambulance operator $120,169.35 for attorney fees and expenses
pursuant to the Equal Access to Justice Act ("EAJA") 49 C.F.R.,
§ 826.1 et. seq. (NTSB Docket No.
342-EAJA-SE-18284). According to the law judge, the
"Administrator failed to achieve his ultimate goal in the
prosecution of the underlying action", which was the revocation of
Air Trek's air carrier certificate.
The revocation order initially contained 38 factual allegations
and 14 regulatory violations. By the fourth day of the
nine-day hearing, the FAA attorney had withdrawn half of the
factual allegations, and 8 FAR violations. The Administrator
offered no real explanation for the withdrawals.
Therefore, based upon the record, the law judge found it
implicit that the Administrator was "simply inadequately prepared
to proceed on the allegations that were withdrawn, had not
investigated them thoroughly, and lacked the evidence to sustain
his burden of proof. The law judge added that "it is obvious
that the Administrator should not have proceeded to a hearing on
allegations of wrongdoing that he was not adequately prepared to
prove." Accordingly, he held that the Administrator did not
have a reasonable basis for proceeding with the charges, and
therefore found that the FAA proceeded "without substantial
As a result of the FAA's unjustified actions, Air Trek was
grounded for nearly fifteen months. Prior to the revocation
order, the company had been in operation for thirty years with no
violation history. On August 20, 2009, the FAA returned Air
Trek's original air carrier certificate. One week later, the
law judge ordered the FAA to pay more than $120,000 for defending
the baseless certificate action.
Throughout the hearing and appeal, Air Trek was represented by
Gregory S. Winton, Esq. of Aviation Law Experts, LLC, along with
co-counsel, Darol H.M. Carr, Esq. of the Farr Law
Firm. Winton, a former FAA senior trial attorney, has been
practicing aviation law exclusively for the past 20
years. According to Winton, this is the largest reported EAJA
award against the FAA to date.
According to Dana Carr, Air Trek's co-owner and Director of
Operations, "although the FAA's revocation order did not survive,
Air Trek has been grounded for more than one year and has lost
millions of dollars in revenues. Finally, now that we are back
in full operation and the law judge has awarded the FAA to pay a
fraction of our attorneys' fees and expenses, we feel somewhat
vindicated from this horrible nightmare."