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EAJA Attorney Fee Awards are Hard to Get, Even When the FAA Can't Get It's Story Straight

by Greg Reigel 31. October 2012 11:46
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A recent NTSB decision illustrates, once again, how difficult it can be for an airman who successfully defends against the FAA to obtain an award of attorney fees under the Equal Access to Justice Act ("EAJA"). In Administrator v. Kamm the FAA alleged the airman violated FARs 91.155(a) and 91.13(a) when he allegedly operated a passenger-carrying flight under visual flight rules ("VFR") through clouds in Alaska. After a hearing, the administrative law judge ("ALJ") concluded that video and photographic evidence, as well as the testimony presented by the FAA, failed to prove it's case because none of the evidence showed the aircraft flying through clouds. Not only did all four of the tourist passengers testify that the aircraft did not fly through clouds, the ALJ also found the testimony of two FAA inspectors who were passengers on the flight to be unreliable.

The ALJ noted inconsistencies between the inspectors' written statements, drafted approximately two weeks following the flight at issue, and their testimony at the hearing. He also found that the inspectors' stories were not corroborative because one inspector stated the aircraft's left wing disappeared into clouds for a matter of moments on two specific instances but the other inspector stated that the aircraft flew through small clouds approximately eight times during the flight.

As a successful party, the airman then applied for an award of attorney fees under EAJA. However, the ALJ denied the fee request finding the FAA was substantially justified in pursuing the case. The ALJ rejected the airman's argument that based upon the evidence and testimony, a fee award was appropriate because the FAA shouldn't have pursued the case at all. The ALJ stated that a hearing was necessary to assess the reliability and credibility of the inspectors' and other witnesses' testimony. The airman then appealed the denial to the NTSB.

On appeal, the airman argued the ALJ erred in finding the FAA's pursuit of the underlying case was reasonable and that the FAA should have known the inspectors' recollections of the flight were inconsistent and, as a result, it should have abandoned the case before the hearing. With respect to the first argument, the Board observed that the FAA is substantially justified in pursuing a complaint if key factual issues hinge on witness credibility. Since the ALJ's decision hinged on his credibility findings at the hearing, the Board found it was reasonable for the FAA to pursue the case against airman.

In analyzing the airman's second argument, the Board initially observed that the FAA will be liable for an award of attorney fees under EAJA if the FAA does not abandon the investigation of a case when it knows or should know the case is neither reasonable in fact nor law. Next, the Board noted the FAA's investigation of the case included reviewing the physical evidence and interviewing the witnesses, including the four tourist passengers and only then did it decide to pursue the case against the airman. As a result, the Board found the FAA did not disregard or fail to give meaningful consideration to the airman's defense. It then concluded by stating "[g]iven the evidence before the Administrator, consisting of photographs and the first-hand observations of experienced FAA inspectors, we find the Administrator's pursuit of the case was reasonable."

This case highlights the high hurdle applicant's must vault in order to show that the FAA was not substantially justified in pursuing it's case. But if the FAA's own employees/witnesses can't get their stories straight, I'm not sure how it can be justified in pursuing your case. Unfortunately, when the ALJ couches his decision in terms of credibility, as is the case more and more often, it can be very difficult to win an EAJA attorney fee award.

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Greg Reigel

Cessna Introduces A New Citation Sovereign

by GlobalAir.com 31. October 2012 10:39
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Article by: www.aero-news.com
New Avionics, New Engines In The Latest Of The Line

Cessna has introduced the latest variant of its Citation Sovereign line at the NBAA convention in Orlando, and announced that the "Citation X" will live on.

“This year, we are thrilled with the steps we have taken to deliver what our customers want and need,” said Scott Ernest, Cessna President and CEO. “These innovations further underscore our commitment to bring cutting edge aircraft and service to market for today and tomorrow and to exceed our customers’ expectations year after year.”

The New Citation Sovereign now delivers increased range, updated technologies and enhanced capabilities. Features of the airplane, currently on display at NBAA include:

  • New cockpit with Garmin G5000 avionics suite
  • Increased range by 150 nm, boosting the New Citation Sovereign total range to over 3,000 nm
  • Powered by the new Pratt & Whitney Canada PW306D engine
  • New cabin amenities including the integrated Cessna Clarity cabin management system, in addition to improved seat design
  • Improved short runway performance
  • Integrated automatic throttles
  • Winglets have been added, giving the aircraft a distinct appearance and an aerodynamic boost
  • Improved ground cooling performance

Line flow has already started on the New Citation Sovereign, and entry into service is expected in the early third quarter of 2013. The new Sovereign will also be available with a utility configuration, with options to carry payload, people, or both, depending on the mission requirements.

Meanwhile the Citation X name will live on. When the plans were drawn to improve on the Citation X systems and performance, that aircraft was to be called the “Citation TEN”. Through the design and certification process, the Citation TEN has claimed the title of world’s fastest business jet, but customers have told Cessna that they prefer the new aircraft retain the Citation X name.

“You can see customer input present throughout the entire process,” said Roxanne Bernstein, senior vice president of Marketing. “We’ve implemented customer input with various designs, we value customer feedback with services, and we also listen to the customer when it comes to guidance with naming our aircraft. Customers value the performance and system improvements with the updated aircraft, the fact that the new Citation X is the world’s fastest business jet with a top speed of Mach 0.935, and they value the original name. So Cessna has decided that, moving forward, this aircraft will be called the new Citation X.”

Cessna also reinforced the company’s activities tied to the smart global growth strategy including opening Citation Service Centers in the United Kingdom and Spain. The company announced the first Cessna-owned Citation Service Center in the UK, located at Robin Hood Airport Doncaster Sheffield. The newly-acquired 50,000-square-foot facility, rebranded as the Doncaster Citation Service Centre, offers a wide range of services to Citation customers, from maintenance to modernization and paint. Previously known as Kinch Aviation Services, the business has operated for 15 years and been a Cessna authorized service facility for the past four years.

Cessna highlighted the grand opening of its new regional Citation Service Center in Valencia, Spain. The 100,400-square foot (9,328-square meter), state-of-the-art facility is located at Valencia Airport (ICAO: LEVC) in eastern Spain, convenient for Citation customers across Western Europe and North Africa. The Center offers a one-stop shop for comprehensive repair, completion, fulfillment, maintenance and customization services.

In addition to Cessna’s extensive U.S. based network, Cessna now operates four Citation Service Centers in Europe, with Valencia and Doncaster complementing facilities in Paris, France, and Prague, Czech Republic.

(Images courtesy Cessna)
FMI: www.cessna.com

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Dassault Introduces 2000LXS

by GlobalAir.com 30. October 2012 09:19
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Article By: Mark Huber
www.ainonline.com
Dassault Falcon is introducing yet another new version of its popular super-midsize twin. The Falcon 2000LXS combines the range and amenities of the Falcon 2000LX with the short field capabilities of the Falcon 2000S. The new aircraft is expected to cost $500,000 more than the 2000LX (2012 $) and gain certification in 2014 when it replaces the 2000LX.

As on the 2000S, the LXS features forward edge wing slats to reduce Vref speeds and takeoff and landing distances. Preliminary estimates indicate the 2000LXS will require a takeoff balanced field length of 4,675 feet at mtow, a landing distance of 2,300 feet, and a Vref of 107 knots, a substantial difference from the performance of the 2000LX (5,750 feet, 2730 feet and 116 knots, respectively).

However, unlike the 2000S, the LXS does so without compromising range or payload. Dassault engineers found ways to remove 300 pounds from the wing structure, even with the addition of winglets, and 100 lbs from the cabin interior. Consequently, they estimate with full fuel the LXS will still have a range of 4,000 nm (0.8M, full fuel, six passengers, 85 percent Boeing annual winds, NBAA IFR reserves), an mtow of 42,800 pounds and a maximum payload of 2,190 pounds. Possible city pairs include New York-Anchorage, Singapore-Dubai and Beijing-Mumbai.

Power on the aircraft comes from a pair of Pratt & Whitney Canada PW308C engines (7,000 pounds of thrust each) fitted with Talon II combusters that cut NOx emissions by 20 percent without any power penalty. The engines will burn 40 percent cleaner than ICAO CAEP/6 standards, according to Dassault.

The aircraft’s cabin also includes a variety of improvements including better soundproofing that reduces noise by two decibels, the new Rockwell Collins FalconCabin HD+ cabin management system with HD viewing on monitors up to 22 inches and functions that can be controlled wirelessly from anywhere in the aircraft via Apple iOS devices. A dedicated application allows passengers to control entertainment, window shades, lighting and temperature. The Aircell Axxess II satcom System is standard on the aircraft and the LXS will be delivered with a restyled cockpit that includes the Honeywell Primus Epic-based EASy II avionics system.

Dassault (Booth No. 3760) also confirmed that it is producing parts for its new SMS twinjet and promised to offer full details on the program next year.

The 2000LSX is on track for certification next year and first year production is sold out. The 7X long-range trijet continues to sell well, primarily outside North America. The highest-time 7X has accumulated 4,000 flight hours and will soon receive upgrades including a new cabin management system, updated flight deck, higher crosswind approval, vacuum toilets and an optional shower for the rear lavatory.

Overall, Dassault is on track to deliver 65 Falcons this year, CEO Charles Edelstenne said yesterday, who said the pace of global economic recovery was slow, but encouraging.

Dassault is increasing its global service capabilities to reflect its growing customer base outside North America and now has 50 authorized service centers.

Boeing To Offer BBJ Version Of 737 MAX

by GlobalAir.com 29. October 2012 10:20
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Article By: John Morris
Source: Aviation Week

Responding to strong interest from customers, Boeing Business Jets is launching a VIP version of the 737-8 from its new MAX range.

The BBJ MAX 8 will have the fuel-efficient CFM International Leap-1B engines and Boeing advanced technology winglets, coupling the BBJ2-sized cabin of the 737-8 with a more than 14% improvement in range.

“We’re taking the increased efficiency of the [737-8] and turning it into a VIP aircraft with 600-700 miles more range with the same fuel,” says BBJ president Steve Taylor. “This is a radical step improvement, driven by an increased range that opens up many more city pairs.” Range will be some 6,325 nm. for a typical four-passenger VIP mission with NBAA IFR reserves, he notes.

“We anticipate the BBJ MAX 8 will be a very strong seller as a VIP aircraft and will likely capture a larger share of the market because it’s the right combination of performance, space and comfort,” says Taylor.

He expects initial sales will be to existing customers, a number of whom want to trade up from their BBJ1s that are in some cases approaching 15 years in service. Compared to the “regular” BBJ “which we jokingly call ‘the light twin,’” says Taylor, the BBJ MAX 8 will offer a 19-ft.-longer cabin and three times the cargo capacity – as does the current BBJ2 version.

The BBJ1 is based on the 737-700, while the BBJ2 is based on the -800. Availability of the BBJ MAX 8 will likely be about six aircraft a year, the same as today, as that’s the traditional number that Boeing Commercial Airplanes allows to be drawn from its airline production line. Boeing has firm orders for nearly 900 737 MAX family aircraft; first delivery is scheduled for 2017.

VIP versions of the shorter 737-7 and longer 737-9 are also being considered, says Taylor.

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Embraer Executive Jets Debuts Legacy 450 Mockup At NBAA

by GlobalAir.com 25. October 2012 09:25
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Article by: www.aero-news.com
Attendees To Get First Up-Close Look At The New Airplane Design

Embraer Executive Jets will display a complete Legacy 450 cabin and cockpit for the first time at the NBAA Convention in Orlando, FL, next week. While the mockup will be at Embraer Executive Jet’s booth at the convention center, the Company’s entire portfolio of in-production business aircraft will be at the static display at Orlando Executive Airport. A public unveiling of the mockup will be held at 10 am at the company’s booth on October 30.

“NBAA is an important show for Embraer Executive Jets which is why we chose to debut the Legacy 450 mockup to emphasize its role as a revolutionary business aircraft,” said Ernest Edwards, President, Embraer Executive Jets. “The Legacy 450 is the only mid-light aircraft with fly-by-wire technology and a six-foot, stand-up cabin with a flat floor. Our participation at NBAA is designed to reflect the advances our aircraft bring to the business aviation market. The fact that this year’s NBAA is in our home state allows us not only to show off our aircraft but our Customer Center and headquarters in nearby Melbourne.”

In addition to the entry-level Phenom 100 and light Phenom 300, the large Legacy 650 and the ultra-large Lineage 1000, Embraer Executive Jets will also be showing a Pre-Flown, super-midsize Legacy 600.

(Pictured: Legacy 450 artist's rendering)

FMI: www.embraer.com

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