Air Trek Incurred Attorney Fees And Expenses Challenging Certificate Revocation

In a decision issued March 4, the NTSB denied the FAA's appeal challenging a decision by an Administrative Law Judge (ALJ) to pay Air Trek, Inc., a Florida-based air ambulance operator, attorney fees and expenses in the amount of $120,169.35 pursuant to the Equal Access to Justice Act ("EAJA") 49 C.F.R., Section 826.1 et. seq. (NTSB Order No. EA-5510).

The EAJA permits an award of attorney's fees and costs that a prevailing party incurs, unless the government shows that it was substantially justified in pursuing its complaint. The Supreme Court has defined the term "substantially justified" to mean that the government's position was reasonable in fact and law.

On June 10, 2008, the FAA issued an emergency order revoking Air Trek's air carrier certificate. Following a nine-day hearing, the ALJ modified the sanction from revocation to suspension. The revocation order initially contained 38 factual allegations and 14 regulatory violations. By the fourth day of the hearing, the FAA attorney withdrew half of the charges without explanation.

Accordingly, the ALJ found that Air Trek was the "prevailing party" as to the portions of the complaint and alleged regulatory violations that were voluntarily withdrawn. The ALJ also found that the FAA was "inadequately prepared to proceed on the allegations that were withdrawn, had not investigated them thoroughly, and lacked the evidence" to sustain its burden of proof. Accordingly, he found that the FAA proceeded "without substantial justification." On appeal, the NTSB agreed with the ALJ's findings.

Air Trek also appealed the ALJ's decision seeking additional attorneys' fees. The NTSB granted additional fees required to respond to the FAA's appeal. The total EAJA award was $121,991.34.

The NTSB stated that the FAA Administrator "should not have proceeded to a hearing on allegations of wrongdoing that he was not prepared to prove, and that the Administrator did not have a reasonable basis for proceeding on the alleged regulatory violations that he voluntarily dismissed during the hearing." The NTSB also found that the FAA refused to withdraw elements of the complaint until it "became painfully clear that the Administrator did not have sufficient evidence to establish its case as to most of the allegations." As a result of the revocation, Air Trek was grounded for nearly fifteen months. On August 20, 2009, the FAA returned Air Trek's original air carrier certificate.

According to Dana Carr, Air Trek's co-owner and Director of Operations, "the company was grounded for more than a year and has lost millions of dollars. However, now that Air Trek is back in full operation and the NTSB has affirmed the award of attorneys' fees, we feel somewhat vindicated from this horrible nightmare. Prior to the revocation order, Air Trek had been in operation for 30 years with no violation history." Air Trek provides on-demand air ambulance and executive charter services worldwide.

FMI: www.medjets.com