SERVED FEBRUARY 21, 2011 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

RECEIVED 

MAR - \ 2(ttt 

HEARING DOCKET 

APPLICATION OF 

RECURRENT TRAINING CENTER, INC. 

For fees and expanses under the 

Equal Access to Justice Act 

FAA DOCKET NO. (CPIOGLOOIO) 

(Civil Penalty Action) 

FDMS NO. (FAA-2010-0973) 

•-—•( -

(vi^r n 

CO 

APPELLANT'S BRIEF IN SUPPORT OF ITS APPEAL OF THE 

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION DENYING 

APPLICATION FOR ATTORNEY'S FEES AND OTHER EXPENSES 

COMES NOW Respondent, RECURRENT TRAINING CENTER, INC., hereinafter 

"RTC", by and through its counsel, BARNETT LAW OFFICES, P.C., pursuant to 14 CFR 

§ 14.28 and §13.233 hereby submits its Brief In Support Of Its Appeal Of The Administrative 

Law Judge's Initial Decision Denying Application For Attorney's Fees and Other Expenses 

under the Equal Access to Justice Act, FAA Docket No. CPIOGLOOIO (DMS No. FAA-2010-

0973) served on January 3, 2011. RTC contends that the finding of substantial justification by 

the Honorable Richard C. Goodwin, was not si4>ported by a preponderance of the reliable. 
probative and substantial evidence; and that the conclusions of law were not made in accordance 

with applicable law or precedent. In support thereof, RTC states the following: 

STATEMENT OF THE CASE 

I. Procedural History 

On September 21,2009, Complainant, the Federal Aviation Administration ("FAA"), 

issued their Final Notice of Proposed Civil Penalty. The FAA sought a $3,850 civil penalty 

against RTC charging it with violations of §§141.41(b)(3), 141.83(a)(1) and 61.57(d) of the 

Federal Aviation Regulations ("FARs"). The allegations originated in the nature of Instrument 

Proficiency Checks ("IPCs") that RTC had conducted for two pilots. 

The FAA contended that §61.57(d) required RTC to accomplish all the tasks contained in 

the Practical Test Standards guides while RTC contended that only a representative nimiber of 

tasks needed to be accomplished in accordance with the plain meaning of the FAR. If all tasks 

would have been required, RTC could not accomplish the IPCs because Circling Approaches 

and Landing from a Straight-in or Circling Approaches could not be conducted in RTC's Flight 

Training Devices ("FTDs"). 

On September 30,2009, pursuant to 14 CFR § 13.16(h), RTC timely served its Request 

for Hearing in this matter. 

On March 23,2010, pursuant to 14 CFR §13.218(f)(5), RTC filed it Motion for Decision. 

On August 11,2010, the Initial Decision of Administrative Law Judge Richard C. 

Goodwin dismissed the FAA's complaint ageiinst RTC. 
On September 10, 2010, RTC timely filed its Application For An Award Of Attorney 

Fees and Other Expenses Pursuant To The Equal Access To Justice Act (EAJA). 

On January 3,2011, the Administrative Law Judge issued his Initial Decision Denying 

Application for Attorney's Fees and Other Expenses. 

On January 8, 2011, RTC timely filed its Notice of Appeal and now submits the instant 

brief in support of same. 

II. Statement of Facts 

The parties agreed to the following facts: 

1. RTC holds and at all times mentioned herein held an Air Agency Certificate Number 

R9KS949K for an approved Provisional Pilot School with a Special Preparation 

Courses rating issued by the FAA. 

2. RTC also holds and at all times mentioned herein held Training Center Certificate 

Number R9KX049K with Training Specifications to conduct training courses with 

respect to 14 C.F.R. 142. 

3. On or about January 16,2008, RTC certified that Mr. VanBerkom successfully 

completed an Instrument Proficiency Check ("IPC") and on December 17, 2007, RTC 

certified that Mr. Moore successfully completed an Instrument Proficiency Check. 

These IPCs were performed in a Flight Training Device ("FTD"), Level 1, 3, or 6. 

4. Circling Approaches and Landing from a Straight-in or Circling Approach maneuvers 

cannot be performed with a Flight Training Etevice ("FTD") Level 1, 3 or 6. 

5. FTD Level 1, 3 and 6 are the FTDs approved for RTC. 
6. The IPC's given to both pilots did not test for Landing fix)m a Straight-in or Circling 

Approach maneuvers. 

7. The Complainant asserted that an IPC must test for aJl the Instrument Rating Practical 

Test Standards ("PTS"). The PTS includes Landing from a Straight-in and Circling 

Approach maneuvers. 

8. The Agency argued that RTC committed three violations for the FAR's: 

a. §141.41(b)(3), 

b. §141.83(aXl)and 

c. $61.57(d) 

9. RTC argued that the language of 61.57(d) is clear and vmambiguous on its face and 

that an IPC need only include "a representative number of tasks". 

Based upon the evidence in the record, the law judge found the following facts: 

10. The Court foimd that there were no genuine issues of material fact and that the matter 

could be decided on questions of law (See Decision, I. Para. 7). 

11. The Court stated in its decision that all allegations hinged upon an evaluation of the 

language of 14 C.F.R. §61.57(d). (See Decision, III Para.. 2) 

12. The Court further stated in its decision that the proper reading of 14 C.F.R. §61.57(d) 

requires accomplishment of a "representative number" of PTS tasks - not all of them, 

and not necessarily the ones named in the PTS chart. (See Decision, IIL Para. 4) 

13. The Agency's position would effectively delete the words "representative number" 

and the manifest intent of the regulation would thus be thwarted. (See Decision, IIL 

Para. 4) 
14. The Court further stated that the Agency relied on statements from the PTS which do 

not have the force of law. Because the PTS lacks legal effect, it may not impose 

duties not compelled by the plain words of 14 C.F.R. §61.57(d). (See Decision, III 

Para. 6) 

15. Moreover, the Court stated, 14 C.F.R. §61.57(d) requires no explaining or 

supplementation by reference to extrinsic documents. As such, the arguments of the 

Agency are beside the point. (See Decision, IIL Para. 7) 

16. Lastly, the Court decided that the allegations of the Complaint were not proven and 

the Compliant is "hereby dismissed". (See Decision, III Para. 8) 

SUMMARY OF THE ARGUMENT 

In the instant appeal, RTC contends that the fmding of substantial justification by the 

Honorable Richard C. Goodvwn, was not supported by a preponderance of the reliable, probative 

and substantial evidence and the conclusions of law were not made in accordance with 

applicable law or precedent. Following the ALJ's initial decision in favor of RTC, RTC filed a 

timely application for an award of fees and expenses under the EAJA. Since the Agency did not 

challenge whether RTC was the prevailing party; whether RTC was fioancially qualified to 

receive an EAJA award; whether the claimed attorneys' fees and expenses were reasonable imder 

the circumstances; or whether special circumstances make an EAJA award uijjust; the sole 

remaining issue involves whether the Agency was substantially justified in prosecuting the 

matter. 
RTC contends the FAA's position was actually fiivolous since the FAA, in effect, was 

attempting to make retroactive to 2007 an FAR that became effective in 2009. Accordingly, 

there would be no reason to change the FAR if the regulation which was alleged to have been 

violated already required conducting all of the tasks. 

Further, the ALJ decision denying the application states that the FAA is entitled to err on 

tight cases to fulfill its mandate. As the change to the FAR made into law the FAA's earlier 

interpretation, the mandate becomes a moot issue because there was no longer a need for a 

precedent setting decision. 

Moreover, the FAA's position clearly offended established precedent when it ignored at 

least three of its own publications that were contrary to the FAA's position. The publications 

which established precedent are the FAA's own FAA Order 8900.1, Flight Standards 

Information Management System (FSIMS) Handbook Paragraph 5-263; Advisory Circular 61-

98A giving discretion to the instructor; and An FAA Legal Interpretation Letter contemplating 

the use of FTD's for IPC's. 

What is more, RTC was charged with violating two parts under 14 C.F.R. §141. 

Throughout the course of the proceedings the Administrator never put forth an argument as to 

how the alleged violation under 14 C.F.R. § 61.57 automatically resulted in RTC violating 14 

C.F.R. §141. The FAA never cited RTC's TCO's (Training Course Outline) or Syllabus and how 

RTC did not comply with its approved courses. Accordingly, the FAA caimot be substantially 

justified in charging RTC with violations of 14 C.F.R, §141 if the Administrator cannot 

articulate how the violation occurred. 

Lastly, fte EAJA regulations specifically place the burden of proving that the agency's 

position was reasonable in fact and law on the agency. 14 C.F.R. § 14.04(a). The FAA has failed 
to meet that burden in its response to RTC's application. In the case at bar, the imderlying 

government action at issue and the position taken by the government in defending the validity of 

its action, was not reasonable in law or fact. Therefore, the law judge's decision denying the 

EAJA application must be reversed. 

STAJVDARDS 

Pursuant to 14 CFR § 13.233, in any appeal from a decision of an administrative law 

judge, the FAA decisionmaker considers only the following issues: 

(1) Whether each finding of fact is supported by a preponderance of reliable, probative, and 

substantial evidence; 

(2) Whether each conclusion of law is made in accordance with applicable law, precedent, and 

public policy; and 

(3) Whether the administrative law judge committed any prejudicial errors that support the 

appeal. 

Under the Equal Access to Justice Act (EAJA), a prevailing party shall recover 

reasonable litigation costs if the Agency's position in the underlying litigation was not 

"substantially justified." 5 U.S.C. §504(a)(1). The Act provides for the award of attorney fees and 

other expenses to eligible individuals and entities who are parties to certain administrative 

proceedings before agencies such as the Federal Aviation Administration (FAA). 

To prove that its position was substantially justified, the agency must demonstrate that its 

position was reasonable both in law and fact In the Matter of Nancy Rene Floyd, FAA Order No. 

2006-4 (February 10,2006) citing Frey v. CFTC, 931 F.2d 1171 (7th Cir. 1991), Natchez CocaCola Bottling Co., Inc., v. NLRB, 750 F.2d 1350 (5th Cir. 1985). As the Supreme Court 

explained, "substantially justified means justified to a degree that could satisfy a reasonable 
person or having a reasonable basis both in law and fact." Pierce v. Underwood, 487 U.S. 552, 

565 (1988). The government bears the burden of demonstrating substantial justification. Kali v. 

Bowden, 854 F.2d 329, 334 (9th Cir. 1988). 

The FAA's EAJA regulations specifically place the burden of proving that the agency's 

position was reasonable in fact and law on the agency. 14 C.F.R. § 14.04(a). Once, as in this 

case, it is established that the ^plicant is a prevailing party, the government bears the burden of 

proving that its position in the underlying litigation was substantially justified or that special 

circumstances existed. Taucher v. Brown-Hruska, 396 F.3d 1168 (D.C. Cir. 2005). "Whether or 

not the position of the agency was substantially justified shall be determined on the basis of the 

administrative record, as a whole, which is made in the adversary adjudication for which fees 

and other expenses are sought." 5 U.S.C. § 504(a)(1). As the Supreme Court explained in 

Pierce v. Underwood, 487 U.S. 552, 565 (1988), '"substantially justified' means 'justified to a 

degree that could satisfy a reasonable person,' or having a 'reasonable basis both in law and 

facV" Jones v. Lujan, 887 F.2d 1096,1098 (D.C. Cir. 1989). The substantial justification 

standard "is satisfied if there is a 'genuine dispute,' or if reasonable people could differ as to the 

appropriateness of the contested action." Pierce v. Underwood, 487 U.S. at 565. "To be 

'substantially justified' means, of course, more than merely undeserving of sanctions for 

frivolousness." Id at 566. Justice Brennan's concurrence concludes that the government "can 

avoid fees only where it makes a clear showing that its position had a solid basis (as opposed to a 

marginal basis or a not unreasonable basis) in both law and fact." Id at 579. The Board implicitly 

adopted Justice Brennan's view of the substantially justified standard by holding that "EAJA 

awards are intended to dissuade the government from pursuing 'weak or tenuous' cases." 

Hampton, NTSB Order No. EA-3557 at 5 (14 May 1992) (citing Catskill Airways, 4 N.T.S.B. 
799 (1983); Wendler, 4 N.T.S.B. 718 (1983) afFd Wendler v. NTSB, No. 83-1905 (10th Cir. 28 

February 1985)). The combination of Underwood, Hampton and common sense require that the 

Administrator's position have a solid, as opposed to marginal, basis in law and fact. 

ARGUMENT 

The FAA's position in the underlying matter was based on its contention that 14 CFR 

§61.57(d) requires an IPC to test for all Instrument Rating Practical Test Standards tasks. The 

plain language of the regulation refers to a "representative number of tasks required by the 

instrument rating practical test." However, the Administrative Law Judge found that the 

"instrument rating practical test" standards were "incorporated" into §61.57 (d), and thus were all 

mandatory, was "plausible". RTC argues, now, that the ALJ's conclusion of law (that the FAA's 

interpretation was "plausible") was not made in accordance with applicable law, precedent, and 

public policy. 

In October of 2009, the Federal Aviation Regulation that was at issue in the underlying 

enforcement action was changed. The new 61.57(d) requires all (not a representative number) 

tasks in the PTS to be accomplished during an IPC. The new regulation resulted in the FAA 

prosecuting a frivolous position since the FAA, in effect, was attempting to make retroactive to 

2007 an FAR that became effective in 2009. Simply put, there would be no reason to change the 

FAR if the regulation which was alleged to have been violated already required conducting all of 

the tasks. 

Furthermore, the ALJ decision denying the application went on to say that the FAA is 

entitled to err on tight cases to fulfill its mandate. As the change to the FAR made into law the 

FAA's earlier interpretation, the mandate becomes a moot issue because there was no longer a 
need for a precedent setting decision. The plain language of the regulation remains as clear 

today as it was at the time of the alleged violation. In 2007 only a representative number of tasks 

were required, today all of the tasks are required. To argue that this enforcement action 

otherwise establishes precedent and is, accordingly, substantially justified, is a position that is 

based neither in either law or fact. 

Further, in support of its argument, RTC cited in its Motion for Decision three separate 

FAA sources clearly establishing FAA precedent regarding the accomplishment of tasks during 

IPC's. These sources include: 

• FAA Order 8900.1, Flight Standards Information Management System (FSIMS) Handbook 

Paragraph 5-263, 

• Advisory Circular 61-98 A giving discretion to the instructor, and 

• An FAA Legal Interpretation Letter contemplating the use of FTD's for IPC's. 

Despite referencing these three sources of precedent, the Administrative Law Judge found 

the parties "were unable to utilize precedent to help formulate their respective positions." 

The ALJ continued by stating "[a]lso supporting the agency's proof is the principle that 

FAA is entitled to "err" on the side of bringing close cases to trial to fulfill its mandate of 

enforcing and ensuring air safety." As RTC has maintained throughout these proceedings, there 

simply was no reason for pursuing this matter because the FAR had been changed to require all 

tasks be accomplished. Even more, the enforcement action that is the underlying enforcement 

action of this appeal was not reasonable because, had the FAA's position been reasonable, there 

woiild have been no reason to change the FAR to require all of the tasks in the PTS to be 

accomplished during an IPC. The agency simply did not have a reasonable basis for proceeding 

10 
and seeing the matter through. The matter had been decided by the promulgation of a revised 

FAR. 

RTC was charged with violating two parts under 14 C.F.R. §141. Throughout the course 

of the proceedings the Administrator never put forth an argument as to how the alleged violation 

under 14 C.F.R. § 61.57 automatically resulted in RTC violating 14 C.F.R. §141. The FAA 

never cited RTC's TCO's or Syllabus and how RTC did not comply with its approved courses. 

Accordingly, the FAA cannot be substantially justified in charging RTC with violations of 14 

C.F.R. §141 if the Administrator caimot articulate how the violation occurred. Case law 

indicates that the Administrator must be substantially justified in all of the phases of the 

proceedings. American Wrecking Corporation v. Secretary of Labor, 364 F.3d 321 (D.C.Cir. 

04/20/2004). hi that case the court stated "we fmd that the Secretary of Labor's ("Secretary") 

position was substantially justified in all but two phases of the proceedings against AWC. .. . 

We therefore award fees and expenses to AWC in the amount of $43,910.16, which represents 

the reasonable amount to which AWC is entitled for the two phases of the proceedings in which 

the Secretary's position was not substantially justified " Id at 324. Accordingly, RTC should be 

awarded fees and costs for the phases of the proceeding in which the FAA was not substantially 

justified. 

In addition, the agency must, first show a reasonable basis in truth for the facts alleged, 

second, show a reasonable basis in law for the legal theory propovmded and, finally, show a 

reasonable connection between the facts and its legal theory. In the instant case the FAA has 

done none of those. According to the ALJ decision dismissing the underlying matter, the 

definition of "representative" as used in the dictionary, clearly allows for less than all of the tasks 

required by the PTS to be accomplished on an IPC. It is reasonable position to expect the FAA 

11 
•^ V 

to be able to reference a dictionary. In contrast, it is an unreasonable position for the FAA to 

unilaterally construe the word "representative" to mean "all". The rest of the arguments 

promulgated by the FAA are merely a distraction fiwm this basic issue. The FAA's position was 

unreasonable and the FAA has not met its burden to prove otherwise. 

CONCLUSION 

For the foregoing reasons. Appellant RTC respectfiiUy requests the FAA Decsionmaker 

to reverse the initial decision of the Honorable Richard C. Goodwin denying its ^plication for 

attorney's fees and other expenses. 

Respectfully submitted. 

Charles R. Bamett, HI 

BARNETT LAW OFFICES, P.C. 

1664 Moorland Lane 

Crystal Lake, Illinois 60014-2985 

(815)356-8647 

(815) 356-7042 (FAX) 

Attorney for Apjjlicaht 

Recurrent Training Center, Inc. 

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CERTIFICATE OF SERVICE 

The undersigned certifies that the foregoing Appellant's Brief In Support Of Its Appeal Of The 

Administrative Law Judge's Initial Decision Denying Application For Attorney's Fees And 

Other Expenses was served via US Certified Mail, return receipt requested as follows: 

ORIGINAL AND ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Cleric, AGC-430 

WUbur Wright Building—Suite 2W1000 

FAX: 202-493-5142 

ONE COPY 

Briana Martino, Complainant's Counsel 

Great Lakes Region, AGL-7M 

Federal Aviation Administration 

2300 East Devon Avenue 

Des Plaines, IL 60018-4696 

TEL: 847-294-7713 

FAX: 847-294-7498 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

Room E12-320 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536 

Dated this 21st day of February 2011 

,CharlesR.B^ett;ni 

Attorney for Respondent 

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