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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.

Conclusion

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.

Aviation News Rundown: India crash update, near-miss incidents scrutinized further

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The Associated Press reports this morning that Saturday’s Air India crash at an airport in Mangalore may have been caused by pilot error. A Boeing 737 overran a runway and slid into a ravine, killing 158 of 166 crewmembers and passengers.

The NTSB sent a team of investigators to cooperate in determining the cause of the India crash, deadliest in that country in more than a decade. A report from an Indian news agency says ‘nothing was wrong’ with the airport, which has a tabletop runway. Airport officials said pilots certified to fly into Mangalore are well aware of its conditions. Weather reportedly was clear and calm.

The Wall Street Journal reports that federal regulators are stepping up investigation efforts following a recent spike of near misses. The FAA has looked into more than a half-dozen incidents in the past half year, according to the WSJ article.

Could this become the Hyundai or Kia of the sky?  Korea Aerospace Industries (KAI) expects to complete its first KC-100 light piston aircraft by the end of the year with deliveries beginning in 2013. The company hopes to receive certification in the U.S. and Europe for the four-seater.

Finally, it was a rough weekend for two pilots in two parts of the country in separate incidents.

Police arrested an Arkansas pilot after landing on a beach near Savanna, Ga. What began as a pleasure trip for Mark Jensen and his mother ended with his arrest. He now faces charges of reckless conduct and operating a motorized craft on the beach.

In Centennial, Colo., pilot Richard Steinmeir could not get the engine on his Cessna 182 started, so he attempted to start the prop manually. It fired up sure enough. The Skylane became a runaway plane on the airfield. Steinmeir suffered minor injuries attempting to stop it. The Cessna flipped over after traveling about 1,000 feet. The aircraft was a total loss.    

Aviation News Rundown: NTSB investigates fire, FAA reviewing ATC at Houston's Hobby Airport

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The video above is from Dude Perfect, the same group of guys at Texas A&M that threw a basketball into a goal from the top of a football stadium. This time they took to the air for what probably was an equally challenging shot.

 

Links to news stories are at the bottom of the post, but first we relay this release from the NTSB, which is investigating a fire on a Boeing 757 that caused the plane to divert 30 minutes into its flight.

 

In its continuing investigation of a fire aboard a Boeing 757 that diverted to Dulles Airport (IAD) enroute to the Los Angeles International airport (LAX) from New York’s John F. Kennedy International airport (JFK), the National Transportation Safety Board has developed the following factual information:

 

On Sunday, May 16, 2010, about 9:17 pm (EDT) the pilots on United Airlines flight 27, a Boeing 757, N510UA, noted a strong acrid smell and observed smoke from the Captain's lower front windshield.  The incident occurred about 30 minutes into the flight while the aircraft was level at 36,000 feet MSL. On board the aircraft were 7 crewmembers and 105 passengers.

 

The Captain and First Officer reported that they donned their oxygen masks and smoke goggles immediately after observing the smoke and fire. The Captain then gave control of the airplane to the First Officer and discharged a halon fire extinguisher.

 

The smoke and fire dissipated but then re-ignited. The Captain obtained a second bottle from the Purser.  The fire remained extinguished after this second

bottle was discharged. At approximately 500 feet MSL on final approach to Runway19L at IAD, the Captain’s windshield cracked. The landing was uneventful. The airplane cleared the runway, after which ARFF (Aircraft Rescue Firefighting) entered the aircraft to check for residual heat and fire. None was found and the airplane was towed to the gate for deplaning. There were no evacuation and no injuries to the flight crew or passengers.

 

Preliminary examination of the cockpit area revealed that the inner pane of the Captain’s windshield had cracked. One of the five terminal blocks attached to the inside of the lower left windshield was consumed by fire and the portion of the wire harness associated with this terminal block was significantly damaged by fire. There was significant sooting and paint peeling to the left hand side of the windshield airframe support.

 

The Captain’s windshield was moved and will be examined by Board investigators at the manufacturer.

 

Two previous windshield fire events on B757-200 aircraft prompted the NTSB to issue Safety Recommendation A-07-50 https://www.ntsb.gov/recs/letters/2007/A07_49_50.pdf.  The Safety Board investigators will look closely at the recovered hardware to determine if this latest event is related.

 

Other news worth noting:

A second near miss at Houston’s Hobby Airport (HOU) has led to the FAA launching an investigation into how ATC is handled there.

Virgin Galactic’s SpaceShip Two has flown to its launch altitude of 51,000 feet, pressurizing and powering up for the first time. How much longer until there is a single-engine Piper than can reach the moon?

Finally, be sure to check out the Google homepage today, which honors Pac-Man’s 30th birthday by altering its logo into a level of ghosts and power pellets that you can play. (Press the button to the right of the search button to get extra credits or to challenge a friend in two-player mode.)

The people at Google are the second-smartest group on the Web, right behind your friends here at GlobalAir.com.

TGI Fly-Day!

 

WSJ: Two commuter jets did not start second engine prior to takeoff

As we mentioned earlier today, the NTSB is in the process of hearing advice from experts on how to ensure pilots receive proper training and to ensure safety.

On the heels of this comes a report in the Wall Street Journal that two commuter airlines did not start a second engine prior to takeoff.

The pilots avoided emergencies in each case by turning off the runway before accelerating to takeoff speed.

In the wake of the Colgan and Comair crashes, these incidents further prove at the very least that such discussions are crucial to ensure competent pilots are behind the yokes.

At the most, combined with the warning in the earlier release from the panel that experience and integrity could decline, it sends an alarm that more must be done sooner than later to enforce proper training, whether by airline company mandate, FAA mandate or any guideline in between.

Sound off on what you think about the situation in the comments section below.    

Aviation News Rundown: Beware of future airline pilots? and Learn to Fly Day (maybe one can fix the other)

A panel of experts at an aviation safety forum this week issued a scary scenario for the sky in future commercial aviation. They told the NTSB that future pilots at airlines could be, in general, less experienced and ethical amidst an industry in which the workers will be in high demand as airlines begin hiring again.

The Associated Press reports in its coverage of the forum that the hardest hit will be regional airlines, which employ pilots with less experience at lower salaries. Fewer college students and military pilots are looking for work at airlines, as 42,000 pilots will need to be hired over the next 10 years. Flights will still need to be made, and some fear that this could compromise qualifications.

In other news, the FAA says widespread NexGen upgrades will come a little more quickly than initially anticipated. Quoted in the Dallas Morning News, Federal Aviation Administrator Randy Babbitt told the American Association of Airport Executives that the bulk of improvements will have occurred by 2016 rather than the forecasted 2018, as airlines rush to be competitive with advanced gear as the transition snowballs.

The first-ever International Learn to Fly Day (website) appears to have been a smashing success, as 40,000 people attended 450 events nationwide, according to the EAA. Check out coverage of events in Gainesville, Fla., Austin, Minn., and Fitchburg, Mass., where a flying car drew a crowd. 

Perhaps programs like this will help ensure the next generation of pilots are, in fact, experienced and ethical.  

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