Air Trek Beats FAA on Attorney Fees

WASHINGTON, D.C., September 1, 2009 – In an unprecedented decision served on August 27, 2009, the Honorable William A. Pope, II, NTSB Administrative Law Judge, Ordered the Federal Aviation Administration (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 By the fourth day of the nine-day hearing, the FAA attorney had withdrawn half of the factual allegations, and 8 Federal Aviation Regulation (FAR) violations.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found it implicit that the Administrator was “simply inadequately prepared to proceed on the allegations that were withdrawn, had not investigated them thoroughly, and lacked the evidence to sustain his burden of proof.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 justification.”

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 (30) 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. Winton has been successful in obtaining attorney fee awards exceeding $200,000 for eight (8) of his clients over the past 4 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.”