June 2010 Aviation Articles

D.C. Circuit Affirms NTSB's Rejection Of EAJA Fees When FAA Dismisses Its Complaint Before A Hearing

In a recent decision, Turner and Coonan v. National Transportation Safety Board, the D.C. Circuit Court of Appeals has affirmed the NTSB's refusal to allow two airmen to recover under the Equal Access to Justice Act ("EAJA") when the FAA dismissed its complaints before the cases can be heard by an NTSB administrative law judge ("ALJ"). The case began when the FAA suspended the airmen's airline transport certificates for their alleged operation of an aircraft that was in an unairworthy condition in violation of FAR 91.7(a). The airmen appealed the suspensions and their cases were assigned to the same ALJ who scheduled hearings for June 2008.

In April 2008 the ALJ granted motions to continue the cases and re-scheduled the hearings for August. However, after the continuance was granted, the FAA withdrew the complaints against the airmen, stating only: "The Administrator hereby withdraws its [sic] complaint in this matter." The ALJ then terminated the proceedings against the pilots with an short order that, unfortunately, did not specify whether the termination was with or without prejudice. The airmen then applied for an award of attorney's fees and expenses under EAJA.

The Equal Access to Justice Act

The EAJA is found at 5 U.S.C. 504 and is implemented in 49 CFR 826. According to 49 CFR 826.1, "The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (adversary adjudications) before the National Transportation Safety Board (Board). An eligible party may receive an award when it prevails over the Federal Aviation Administration (FAA), unless the Government agency's position in the proceeding was substantially justified or special circumstances make an award unjust." In order to determine whether EAJA fees are available, the key inquiries for an "applicant" (a certificate holder or target of a civil penalty action who is applying for an award of fees) are: (1) Is the Applicant a "prevailing party"? (2) Was the Applicant involved in an "adversary adjudication"? (3) Was the FAA’s position "substantially justified"? and (4) Were the fees actually "incurred" by the Applicant?

The Case Before The ALJ And The Board

The ALJ granted the airmen's EAJA requests finding that the airmen were prevailing parties as a result of the FAA's total withdrawal of all of the charges against the airmen. He also determined that the FAA was not substantially justified because it had "proceeded on a weak and tenuous basis with a flawed investigation bereft of any meaningful evidence." The FAA then appealed the decision to the full Board who reversed the ALJ's award. The Board concluded that the airmen did not satisfy the prevailing party standard because the airmen did not receive an enforceable judgment on the merits of their case, nor did they obtain a court-ordered consent decree that resulted in a change in the legal relationship between the airmen and the FAA.

Specifically, the Board found that the airmen did not prevail on any portion of the merits of the case because the FAA withdrew the charges before the ALJ could hold a hearing. It further noted that the ALJ's order dismissing the case merely accepted the FAA's withdrawal of the charges against the airmen and was not the same as a court-supervised consent decree. Finally, the Board observed that the ALJ did not dismiss the case with prejudice or in any way alter the relationship between the FAA and the airmen. The Board then concluded that "[w]e believe ourselves compelled to find that the Administrator’s withdrawal of the complaint does not confer prevailing party status on applicants under the EAJA."

The Court Of Appeals Affirms

On appeal to the D.C. Circuit Court of Appeals, the airmen argued that they were, in fact, the prevailing parties and entitled to the EAJA award granted by the ALJ. However, the Court concurred with the Board and concluded that the airmen were not prevailing parties. The Court found that the ALJ dismissed the cases without prejudice (meaning that the withdrawal did not prevent the FAA from trying to pursue its cases against the airmen at a later time). As a result, the Court held that the airmen did not receive any sort of "judicial relief." According to the Court, when the FAA unilaterally withdrew its complaints, the FAA ended its adversarial relationship with the airmen and the airmen were left in the same position they were in before the enforcement actions began.


In my opinion, this case is bad law. It places procedure before substance and is contrary to the legislative intent behind EAJA. Rather than deterring frivolous and unsubstantiated litigation by the FAA, the Court's decision certainly makes it more difficult to ensure that the FAA is justified in pursuing its cases. The decision also ignores the realities of litigation. To say that the airmen were simply in the same positions after withdrawal as they were before initiation of the action overlooks the time and expense necessarily incurred by the airmen in defending themselves in the case.

EAJA was enacted to allow recovery of those attorney's fees and expenses. Unfortunately, both the Board and the D.C. Circuit Court of Appeals have significantly impaired EAJA's deterrent effect, for now.

The Statistical Analysis of 'Old and Bold Pilots'

A morbid and unwanted world record is the one that which is awarded to an aviation disaster, based upon the number of people that were killed as victims of this event. Tenerife Airport, in the Canary Islands is still the unfortunate holder of this record. I won't go into the gory details other than to remind you that two tourist-loaded B747's collided on a fogbound runway in 1977. Five hundred and eighty-three perished. It can be argued that the World Trade Centre attacks constitute the largest aviation disaster where more than 4,500 unfortunate souls perished on September 11th, 2001.


It has been said by several accident investigators, that it takes between 6 and 9 separate breakdowns, failures, lapses, mistakes, etc to all coincide (i.e. To all occur to together) before disaster can strike (excluding Terrorism.) I have always been intrigued by this number, and therefore thought that we could explore this claim, together both as a reader, and as a writer, therefore here goes:


It appeared to me that the very best place to get these statistics was from the National Transportation Safety Boards’ own website, at their “query” page for the ‘Accident Database & Synopsis’ archive. Go to the following site:




Once there, I only concentrated on ‘Fatal’ accidents that have been investigated, and concluded by the issuance of a ‘Final Report.’ My search was limited to 2009, therefore all of the following are separate ‘Fatal’ aircraft accidents that include my count of causal factors:


December 2009 fatal accident involving an Aztec: Low time pilot, no weather briefing, night time, low ceilings, reduced visibility, uncontrolled airport, gusty winds, no instrument approach, and no runway lights. = 9 Breakdowns/Failures/Lapses/Mistakes


Another in December: an A36 Bonanza: Elderly pilot, early AM before dawn, low ceilings, fog, poor runway markers, off- course on a Gnav approach.

= 6 Breakdowns/Failures/Lapses/Mistakes


November accident involving a Moore Skybolt: Low time pilot, showing off to friends, low altitude, slow speed, high bank angle, high nose up attitude.

= 6 Breakdowns/Failures/Lapses/Mistakes


October accident involving a restored Aeronca: pilot with heart condition (stint installed), sunset-sun in eyes, low level, low speed, and abrupt maneuvering.

= 6 Breakdowns/Failures/Lapses/Mistakes


Another October accident involved a Robinson R22: Low time pilot, early AM/dark, fatigue, prescription medicine, history of alcoholism, and falsification of records.

= 6 Breakdowns/Failures/Lapses/Mistakes


A September accident of a Cessna 182 involved fog, a low ceiling, special VFR clearance, rapidly deteriorating weather conditions and prescription medicine.

= 6 Breakdowns/Failures/Lapses/Mistakes


Another September accident involved two aircraft in a midair collision, a Cessna 152 and a Piper Cherokee 180: Simulated instrument practice with a student look out, foreign language/poor English, busy training area, and poor radio procedures.

= 4 Breakdowns/Failures/Lapses/Mistakes


In August a Boeing E75 Bi-plane crashed under the following circumstances: the weather conditions were very hot, and the terrain was high above sea level; the pilot was lost (attempting to map read) and had his head in the

 cockpit rather than outside watching for high-terrain, the engine was not producing enough power to clear terrain and a subsequent wing stall.

= 5 Breakdowns/Failures/Lapses/Mistakes


A post independence day accident in July involving a Czech built ex military jet trainer/attack L-29 crashed during a formation sortie with similar aircraft. The fatal parameters involved were as follows: Low altitude and prescription medicines.

= 2 Breakdowns/Failures/Lapses/Mistakes


In May an Aero Commander 500 was lost after dual engine failure, caused by the following factors: a faulty fuel indication system, fuel exhaustion, and the decision to turn back to the runway after the engines failed.

= 3 Breakdowns/Failures/Lapses/Mistakes


A crash of a Cessna 421 Golden Eagle was caused by several preventable factors, which were: Agitation of the pilot, inaccurate and sloppy addition of engine oil to the RH engine, and loose/worn exhaust flange mounts. The RH engine caught fire on climb out. The pilot was 80 years old and suffered from carbon monoxide poisoning due to the in-flight fire. = 4 Breakdowns/Failures/Lapses/Mistakes


In March a Grumman American AA1B hit terrain in a mountainous region because of: a low time pilot, consumption of alcohol, heavy rain and heavy snow fall, failure to obtain a weather briefing, and inadvertent flight into IMC in darkness.

= 6 Breakdowns/Failures/Lapses/Mistakes


February brought the industry the controversial issue of flight experience averages of pilots employed within the commuter airline business when a Colgan Air DHC-8 crashed in Buffalo, New York. Even though many readers are very familiar with the circumstances of this accident, it is still worth reviewing what they were, along with how many were involved to culminate in this tragedy: Crew experience, fatigue, night IFR, failure to respond to stall stick shaker alarm, inappropriate flap use, and low speed flight at low altitude. = 7 Breakdowns/Failures/Lapses/Mistakes


Finally (no pun whatsoever is intended here), we examine the January accident that involved a corporate-2 crew flown 690 Aero Commander: Heavy icing conditions, over gross take-off weight, and out of balance c of g.

= 3 Breakdowns/Failures/Lapses/Mistakes


After collating the Breakdown/Failures/Lapses/Mistakes numbers, the following pattern emerges:


14 separate ‘Case-Closed’ events chosen (unfortunately there are many more listed at the NTSB Website.)


The total number of Breakdown/Failures/Lapses/Mistakes equaled 73.


Therefore 73/14 = 5.2; or…


For every Fatal Aircraft Accident, here in the U.S.A., on average it takes five (5) Breakdown/Failures/Lapses/Mistakes for the accident to occur.


Don’t let this lull you into a false sense of security, because in some of the older cases that I read, it only took one (1) Breakdown, Failure, Lapse or Mistake for the accident to happen.


Physiologically for me, it was quite harrowing, I must say, to have read about all of these horrific reports detailing ‘death and destruction’ in an aircraft. I hope that your sleeping improves over-time after visiting the NTSB site.


As an unknown pilot once stated: “There are old pilots and there are bold pilots but there are no old, bold pilots.”

WHAS Crusade for Children Aviation Poker Run -- THANK YOU!!


This past weekend’s Aviation Poker Run to benefit the WHAS Crusade for Children raised more than $1,500.


The images above are of Noah and D.J. Stickler, two teens helped by the Crusade, who took turns flying a Piper Cherokee. WHAS 11 has video of their experience here.


GlobalAir.com, along with Eagle Aviation, give thanks to the following companies and organizations for their support. Here is to making it even bigger and better next year.


A Taste of Kentucky

Aero Club of Louisville

Alley Theatre

Bearno’s Little Sicily

Buckhead Mountain Grill

Central Bank

Crown Trophy

Dick’s Sporting Goods


Goodyear Tires


Jeff Ruby’s

Kentucky Derby Museum

King Fish


Le Relais Restaurant


Louisville Regional Airport Authority

Louisville Bats

Louisville Screen Print

McCauley Nicolas

Robinson Technical

University of Louisville Athletic Department


Wells Fargo


WHAS Crusade for Children

Wildwood Country Club


Kits quickly find fuel cell leaks with helium tracer

Aerowing has several helium-detection devices to locate fuel leaks that they say saves time and ensures the job is done right the first time.

They include the Heilitest Wing Kit (pictured above) and tank pressurization system.

Using helium as a tracer gas, the leak is discovered in the fuel cell, pinpointing the problem.

All technologies offered on the site are approved by the U.S. Air Force. Find out more about the products at the Aerowing web site here.


The Cobalt Co50, a piston pusher that will hit 280 mph

Slick design? Check. Huge windows? Check. A turbo-charged piston engine that can scream through the sky? Check and mate.  This plane looks like it can play in the big leagues.

Cobalt Aircraft is unveiling its Co50 280-mph-piston pusher at Oshkosh next month.

Founded by a Georgia Tech aerospace grad, the Co50 project began in 2002.

Featuring a spacey interior and an enormous wrap-around windshield, the designers cleared the drawing board before developing this aircraft.

A 350-hp twin-turbo TSIOF-550-D2B pushes the Co50 to hit 245 KTAS at 8,000 feet, according to the company’s web site.  The site also features interactive tools to check out aircraft specs, such as weights and range.

The company soon will begin flight-testing for certification. Representatives will hold a press conference 10:30 a.m. July 28 at Cobalt’s display at Airventure, booths No. 21 and 22.

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