AircraftOwner Online

    After a string of Opinions favorable to Airmen, the United States Circuit Court of Appeal for the District of Columbia Circuit issued an Opinion last month which deals a severe blow to airmen who are victimized by the FAA when those airmen attempt to recover some portion of their attorney’s fees from the FAA. In a shocking Opinion, the Court ruled that the FAA can refuse to settle or drop a case against an airman, and force the airman to prepare for Trial, travel to the location where the Trial is to be held, bring all of the airman’s witnesses and attorneys to the location where the Trial is to be held, arrange to put these individuals in hotels for one or more nights; and then, if the FAA withdraws its charges at the last minute, be totally exempt from any liability to the airman for any of his fees and costs at all.

    The system under which an airman can be awarded attorneys fees and costs when the FAA loses its case is already strongly biased against the airman to begin with. A certificate holder with a net worth in excess of Two Million Dollars cannot be awarded a recovery at all, no matter how egregious the FAA’s conduct might have been. Airmen who are not so wealthy can only be awarded fees if they can prove that the FAA did not even have a “prima fascia case” – just because the FAA loses, if they had a basis on which to have proceeded, the airman is not entitled to recover fees. If an airman passes these two tests, the fees he can recover are limited to $172.00 per hour, which is only around half of the average hourly rate charged by private aviation attorneys for their time in defending enforcement cases.

    The Federal Statute which establishes even these limited rights is called the Equal Access to Justice Act (abbreviated as EAJA – pronounced “EE- jah”). The DC Circuit took a very “strict constructionist” view of the EAJA language, and of the prior rulings concerning the Act, and determined that EAJA fees are only available if a party has prevailed, and that, to prevail, a hearing must have already started, and that the airman’s legal position must have changed to the benefit of the airman by the election of the FAA to withdraw its entire case. In non-emergency cases, the airman never loses his or her certificate and never has to stop exercising the privileges of his or her certificate while appealing the FAA’s case. When the FAA drops its case, therefore, the only change is that the airman is no longer required to fight with the FAA over the disputed claim. The DC Circuit did not feel that this amounted to a change in the legal status to the benefit of the airman.

   Unfortunately, in recent years, some FAA Regional Counsel’s offices have decided to “abuse” the enforcement system to run certificate holders out of business simply by dragging them through the process, even if the FAA does not ultimately have the facts to support its allegations. For instance, many part 135 operators, even some that are fairly large, operate on very small profit margins, and may only have a few qualified pilots. By forcing these individuals to spend a significant amount of time and money litigating with the FAA, the FAA can keep them from flying their aircraft – even if their certificates have not been suspended or revoked) – and to spend money that most of them don’t have, to attempt to show the FAA that there is simply no basis for the particular case that the FAA has filed against them.

    The enforcement process provides an opportunity for the accused airman to meet with an FAA attorney, either over the telephone, or in the Office of the Regional Counsel (which may be hundreds of miles away from the business location of the accused). Most competent advisors suggest that a telephone “informal conference” is not an effective way to attempt to resolve matters with FAA and that the extra expense and time of traveling to the Regional Counsel’s office will produce the best possible settlement offer from the FAA. However, the FAA is not REQUIRED to make a settlement offer of any kind, and the only types of settlements that can be agreed to by Regional Counsel, at the moment, do not include “administrative” remedies such as remedial training or letters of warning. So the Regional Counsel can either agree that the FAA Inspector did not have sufficient facts to justify a proposed suspension or revocation and dismiss the charges; offer to “only” suspend the airman’s certificate for a shorter period of time than originally proposed; or refuse to budge. Unless the airman is prepared to take some kind of suspension or revocation (which will require a cessation of flying activities and the attendant economic difficulties), the only choice the airman has is to appeal to the NTSB and go to a full-blown hearing before an Administrative Law Judge, with witnesses and exhibits.

    The procedures for such a hearing require the airman to file paperwork with the Judge prior to the hearing listing all of the intended witnesses, including expert witnesses (who are usually paid, in advance, to provide expert testimony regarding technical matters), who will testify at the hearing, and all documents that will be introduced into evidence. In order to do this, the airman will generally have to conduct some “discovery”, which involves taking depositions, requesting production of documents from parties, and making sure that you find out what the other side’s witnesses are going to say and what documents they intend to introduce. All of this costs money – lots of money, even if you don’t use an attorney – and a whole lot more money if you do use an attorney.

    To quantify this a little bit, you should know that one of the rulings that this case may affect is a recent EAJA award to an airman in the amount of approximately $123,000.00 (calculated at the reduced rates I described above).

    The net effect of this new ruling is that a “rogue” FAA inspector or attorney can force an airman to take a tremendous amount of time away from his or her business, spend over $200,000.00, inconvenience that airman’s witnesses who may be friends or business associates, and then, at the very last minute, withdraw their claim, without facing any potential penalty at all. I don’t know too many businesses or individuals who can remain in business through something like this. I certainly could not.

            There is a very slim possibility that this case will be appealed to the Supreme Court of the United States. The Supreme Court, however, would not have any obligation to hear this case, even if an appeal were filed. In all likelihood, then, this is a final ruling on the point. The only way to put “equality” of any kind back in the Equal Access to Justice Act, is now for Congress to amend the Act to specify different standards than those that the DC Circuit ruled upon. If you are concerned about “rogue” inspectors or attorneys in the employ of the FAA, you may wish to contact your local Congressman and Senator concerning this case. Please feel free to call me for a copy of the case if you need it.