Gregory S. Winton, Esq.
April 1, 2008
FAA is Ordered to Pay a New York Charter Pilot More Than $35,000 in Attorney
The Chief Administrative Law Judge of the National Transportation Safety
Board (NTSB) Ordered the Federal Aviation Administration (FAA) to pay a charter
pilot $35,516.39 for attorney fees and expenses pursuant to the Equal Access to
Justice Act ("EAJA") 49 C.F.R., section 826.1 et. seq. (NTSB Docket No. 328-
EAJA-SE-17972). Under the EAJA, the FAA shall award to the prevailing party,
fees and other expenses incurred, unless the agency was substantially justified.
The attorney fee award follows a voluntary withdrawal of the FAA's Order of
Suspension issued against the Airline Transport Pilot Certificate of a New York
charter pilot. The FAA initially alleged that the pilot operated an aircraft in
an unairworthy condition and in a careless or reckless manner. The FAA
subsequently charged that the pilot violated 14 C.F.R. section 135.65(b), which
states that the pilot in command shall enter or have entered in the aircraft
maintenance log each mechanical irregularity that comes to the pilot's attention
during flight time.
On July 31, 2007, the FAA issued an amended Order of Suspension withdrawing
all allegations, with the exception of section 135.65(b). Specifically, the
amended Order alleged that during a flight from Key West, Florida to New York,
the fuel transfer system malfunctioned. According to the FAA, the pilot failed
to make a record of the fuel system malfunction in the aircraft maintenance log.
On December 5, 2007, one day before the scheduled hearing, the FAA withdrew its
In his Order awarding EAJA fees, the law judge found that "there is no
evidence that the fuel transfer system malfunctioned." Upon arrival in New York,
the Director of Maintenance performed an operational check of the fuel transfer
system in order to confirm that the system did not malfunction. He subsequently
made an entry in the aircraft maintenance log. As a result, the law judge found
that the pilot did have a log entry made in accordance with the regulation.
Specifically, he stated that "the [FAA] Administrator lacked substantial
justification as he never possessed or set forth any evidence to demonstrate
that the aircraft was flown in an unairworthy condition," and "the Administrator
was well aware that the fuel transfer system operated normally." Thus, he found
that "prosecution of this matter lacked a reasonable basis in fact," and "the
agency proceeded on a weak and tenuous basis with a flawed investigation bereft
of any meaningful evidence." Accordingly, the application for attorney fees and
expenses was granted.
The pilot was represented by Gregory Winton, a former FAA trial attorney, who
has been practicing aviation law for the past 19 years. Winton is the President
of Aviation Law Experts, LLC, a national law practice and consulting firm based
in the Washington, DC metropolitan area. He is a licensed commercial pilot and
certified flight instructor.
According to Winton, "this is a rare decision. Over the past two years, the
NTSB has granted only one EAJA award. In this case, the FAA has clearly wasted
valuable agency resources to prosecute a frivolous action." Over the past four
years, Winton has received five EAJA awards against the FAA. In a sixth case
where the chief law judge granted an EAJA award, the NTSB reversed on
Gregory S. Winton, Esq.
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