Gregory S. Winton, Esq.
U.S. Court of Appeals Finds Air
Carrier to Be Prevailing Party Against
FAA Following Withdrawal of Civil
April 18, 2012
On April 17, the U.S. Court of Appeals
for the D.C. Circuit, the nation's second highest court, granted an appeal filed by
Green Aviation Management Co., LLC (Green Air), a New York based jet charter
company (USCA D.C. Case No. 11-1260). The court remanded the case back to the
Administrator of the Federal Aviation Administration (FAA) to determine whether the
civil penalty complaint against Green Air was substantially justified, and if not, to
determine the amount of attorney's fees and expenses to which Green Air is entitled
under the Equal Access to Justice Act (EAJA). Pursuant to the EAJA, an agency that
conducts an adversary adjudication shall award to the prevailing party, fees and
other expenses incurred by that party, unless the position of the agency was
On February 6, 2007, the FAA filed a complaint against Green Air alleging that during
a chartered flight from New Jersey to the Bahamas, its plane carried ten, rather than
the approved nine passengers. The tenth passenger was the pilot's adult daughter.
The FAA alleged that she was either an unapproved tenth passenger or an untrained
flight attendant, and sought $33,000 for violation of three regulations. Green Air
responded, through its attorneys at The Aviation Law Firm, that the daughter was a
non-required crew member, and as a Green Air employee, she was permitted by
regulation to occupy the cockpit jump seat during the flight.
Two weeks before the scheduled hearing, the FAA voluntarily withdrew its
complaint. Pursuant to procedural regulations, the Administrative Law Judge (AU)
dismissed the case with prejudice. Following dismissal, Green Air filed an application
for attorney's fees and other expenses incurred to defend the complaint. The AU
found that Green Air was the prevailing party, but denied the request for fees finding
that the agency was substantially justified in bringing the complaint. Green Air
appealed the denial of fees to the FAA Administrator.
Upon appeal, the FAA Administrator found that Green Air was not the prevailing
party, because the agency voluntarily withdrew its complaint. As a result, the
Administrator sustained the denial of attorney's fees.
Green Air petitioned the U.S. Court of Appeals for review of the FAA Administrator's
decision, arguing that it was the prevailing party as the term has been interpreted by
the U.S. Supreme Court in Buckhannon, 532 U.S. 598 (2001). The appeal turned on
whether the AU's dismissal with prejudice satisfied the Supreme Court's
requirements for prevailing party status.
The court found that as a result of the dismissal, "the FAA could not re-file a
complaint based on the same set of facts because the dismissal with prejudice has
res judicata effect." Accordingly, the court stated that "Green Aviation obtained
judicial relief by the dismissal order; nothing in Buckhannon or this court's precedent
requires more. This conclusion comports with the EAJA, which is to prevent
defendants from 'be[ing] deterred from seeking review of or defending against
unreasonable governmental action because of the expense involved. '"
Gregory S. Winton and Jared M. Allen of The Aviation Law Firm
represented Green Air. Winton, a former FAA and
Department of Justice trial attorney, has been practicing aviation law exclusively for
more than 21 years. During the past six years, Winton and The Aviation Law Firm
have successfully recovered more than $250,000 from the FAA, on behalf of clients,
under the Equal Access to Justice Act.
Aviation Law Experts, LLC
Tel: 301-294-8550 / Fax: 301-294-2525
Source: Aviation Law Experts, LLC