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P. UUZ/UZ7 

';•^"^!'^^ ! 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION ^Or05$|^ 

_ 

In the Matter of: 

MICHAEL P. LEE 

and 

GARY J. LHE 

! 1 Docket No.: CD05CWOOVZ' (^ llPS\/^6dO^ 

FAAEIRNo. 2ed5SW010038 

Docket No- <ai)J&WOOB' /M0/1/^PS'3A 

FAA EIR No. aOOSSWei0037 / 

Hon. Richard C. Goodwin 

RESPONPENT'GARY LEE APPLICATION FOR AWARD OF ATTORNEYS FEES 

Pursuant to the tenns and provisions of the Equal Access"to Justice Act, 5 U. S. C. § 540, 

and 14 C. F- R §14.01, et seq., Respoiident Gary Lee respectfully applies for an award of 

i 

attorneys fees in the above matter in v^^hich he was the prevailing party against the Federal 

Aviation Administration ("Agency"), a government agency, on the grounds that the Agiaicy's 

position in the proceeding was not substantially justified and there are no special circumstances 

which would make an award unjust. M support of his apphcation. Respondent Gary Lee in the 

r 

above proceedings states as follows: i. 

1 - On or abont Augyst 9,12005, the agency filed separate complaints against 

r 

I 

Respondents Michael. Lee and Gary iJse. In its August 9,2005 coxnplaint against Resp'ondent 

GaryT.ee ("^Complaint"), the Agency klleged that as a result of his conduct while a passenger 

onboard Southwest Airlines fli^t number 2884 on February 23,2005, Respondent Gaiy Lee 

violated 14 C.F.R § 121.580 "in that Respondent assa\ilted, threatened, intimidatjed or interfered 

with a crew member in the perfonnan|pe of the crew member's dtities aboard an aircrafu being 

I 

I 

opemted under Pari 121 of the FederaJ Aviation Regulations." 
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2. Section 121.580 prohibits a passenger on a commercial aircxaflftominteifOTng 

with a crewmember in the perfoimancje of the orewmembCT's duties aboard the aircraft. 

t 

1 

3. Th\is, applicant was a piarty, as defined in 5 U. S.C. § 504(b)(1)(B), in the above 

adversary adjudicative proceeding, thd Civil Penalty Action, brought against him by the Federal 

Aviation Administration by the filing ^ d service of a Complaint against him on or about August 

9,2005. \ 

4. Alexander Anolik, APILC (hereinafter "Anolik") jointly represented both 

Respondents Gsory Lee and Michael Lee on apro-bono basis. In the cour.<;e of Anolik firm's 

representation of the Respondents G«ry Lee and Midbael Lee, Anolik conducted discovery, 

including witness deposition, represerJted Respondent Gary Lee at the evidentiary hearing and 

I 

submitted motions and reply motions, i 

5. On July 31,2006, the Ilonorable Richard C. Goodwin issued the Initial Decision 

in this matter, finding that Respondent Gary Lee committed no violation and dismissed the 

Agency's complaint against Respond^i Gary Lee. See attached as Exhibit "A" Initial decision 1 

of Administrative Law Judge RichardC Goodwin. A copy of the complete Jiily 31,2006 Initial 

Decision was not served on Respondent Gai>' Lee's counsel until August 4, 2006. 

6. The Initial Decision bejcame administratively final on August 19,2006 when 

neither party filed an appeal from ihe initial Decision within 15 days of the date of service of the 

InitiaJ Decision. • 

7. AJjplicant is an individual with a net worth of not more than $2 rmlhoh at the tiine 

the adversary adjudication was initiated. See Respondent Gary Lee's Financial Statem<jnt 

attached hereto as Exhibit "B." 

1-
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8. The Agency's position was unjustified on the giounds that the appHcable law, and 

the evidence adduced in the course of mvestigation and discovery, and introduced into the record 

[ • : 

at trial by the Agency itself, clearly shbwed that Respondent Gary Lee did not violate § 121.580 

[ 

since at no time was it ever charged o* shown that a crewmember experienced any intedrerence 

with the performance of any stated task, and, indeed, Ihat the activities in which the 

crewmcmbcrs were engaged at aU material times were themselves the tasks required of liiem 

! 

under FARs and the ^^licable rule of law. Furthermore, the Agency, prior to filing the 

i 

Complaint, and thereafter, never attenipted to identify or prove any specific act or omission on 

the part of Respondent Gary Lee thai eonstiimed "interference" with a crewmember, let alone 

I 

I 

interference sufficient to warrant the initiation of a violation or imposition of a civil penalty. 

9. Aaomeys fees and co-«:ts in defending Respondent Gary Lcc in the above 

captioned ai;tion, for which the recovery is sought, amounted to $8,668.15. This amount 

i 

includes 64 hours of work performed at the rate of $ 125 per hour, which is one half of tihe total 

128 hours of work performed on behalf of both Respondents Gary Lee and Michael Lee. 

Expenses for Gary Lee in this case totaled S668.15. See Declaration of Alex F. Pevzner in 

Support of Respondent Gary J. Lee's .jvpphcation for Attorneys' Fees Under the Equal Access to 

I 

Justice Act attached hereto as Exhibit "C." 

10. Respondent Gary Lee i|s entitied to a recovery of attorney fees despite b<ang 

represented oo a.pro-hono basis. Ed A. Wilson, Inc. v. General Servs. Admin., 126 F.3d 1406^ 

1409 (Fed.Cir. 1997), SEC v. ComseA> Corp,, 908 F.2d 1407,1415 if" Cir.I990); In National 

Association of Manufactures v. Department of Labor 159 F.3d 597, 607. 
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WHEREFORE, for the foregoing reasons. Respondent Gary Lee, respectfJiLly requests an 

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award of attorney fees and costs in thejamount of $8,668.15. 

Dated: Sq)tember 8, 2006 

Respectfully Submitted, 

ALEXANDER ANOLIK, A 

Professicipal Law Coipo] r) 

Alex F. Pevzner 

Counsel for Respondents Michael P. Lee 

and Gary J. Lee 
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EXHIBIT «A 9? 
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J bd V V > ,: :i.30 ?M ALEXANDER ANOLIK,PLC FAX K;. ,!55:ii54S :',j \ U. J I • W ' Ld . 

Office of Hearings, J\/l-20 

Room: 6411 I 

400 7th ST SW ; 

Washington, DC 20590 

Phone:(202)366-9121 

Fax: (202) 366-7536 

DBWniVBITOF 

TRANsrammioN 

i 

To; 

F^X: 

Phone: 

Rdc 

ALEXANDER ANOtIK 

f 

1 

[ • 

From: PAT MATTHEWS ON BEHALF OF 

JUDGE RICHARD GOODWIN 

Date: 8/4/06 

Pages; 

c c : [Click here and type name] 

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1 

n Urgent • For Review n Plfease Comment Please Risply D Please Recycle 

PLEASE DISCARD PREVIOUS INITIAL DECISION. PAGE 6 WAS MISSING. 

THANKYOU. \ 
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FAX No, 4156733548 

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UNTTED STATES IDEPARTMENTT OF TRANSPORTATION 

OFmCE OF HEARINGS 

WASHINGTON, D.C. SERVED JtJ]LY 31,2006 

FEDERAL AVIATION ADMINISTRATION. 

Complainant, 

V . i • 

• 

MICHAEL P. LEE j 

and 

GARY J. LEE, ' 

i 

I 

Respondents. ! 

FAA DOCKET NOs. CP05SW0012 

CP05SW0013 

(Civil Penalty Actions) 

DMS Nos. FAA-2005-22082 

FAA-2005-22084 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

j 

1. Docket CP0SSW0OI2: Respondent Michael P. Lee violated 14 C^FJt. §121.580 as 

charged and will be attuauwd a civil penalty of $400; 

2. Docket CP0SSW0013: Rff^ondent Gary J. I ^ committed no violation. Th« 

Complaint will be dismissed. 

r. Background 

1 

Sgt Michael P. Lee and Mr. Gary J. Lee (hereinafter respectively "Sgt. Lee" 

and 'Gary Lee," or, collectively, "the Lees" or "Respondents") were passengers on a 

Southwest Airlines flight-from Phdenix, AZ to Philadelphia, PA on February 23, 2005 

(tr. 13-14, 65). The Federal Aviation Administration (hereinafter "Complainant" or 

"the agency") issued separate Complaints against them. The agency charged Sgt. 

Lee with a violation of §121.580, alleging that he interfered v^'th crewmembers in the 

performance of tiieir duties. It seeks the maximum civil penalty of $1,100- (Docket 

No. CP05SW0012). The agency kiso charged Gary Lee with a violation of §121.580 

for similar reasons, and seeks the! maximum civil penalty amount of $1,100 against 

him as well (Docket No. CP06SWboi3). 

The matters were combined for hearing. I held an aral evidentiary hearing in 

San Francisco on February 27 an^ 28, 2006. The parties have filed briefs and the 

matters are now ready for decisioiji. 
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i. 

I' 

n iTindiwgg and Condmions j 

t 

The Lees are brothers. Sgt. Lee is an Army mechanic and had inecently 

returned from service in Iraq, dary Lee works In a plant in California (2 Tr. 274). The 

Lees were the last to board. They took seats in a row near the rear of the aircraft. 

Sgt. Lee sat in an aisl$ seat, aircraft left (seat 23C), and Gary Lee took the window -

seat (23A). They left'ain empty seat between them. The Boeing 737 aircraft, which 

seats 137, was a bit rhiorethan half full. A Phoenix-Philadelphia flight lasts between 

four and five hours, depending on winds (1 Tr. 65, 68-70,100-01,165-66,168,192, 

195, 213; 2 Tr. 314-15;.Exh, R4) . 

1 

The Lees were excited about the trip. They were traveling home to 

Philadelphia for a family reuniori and birthday party. In keeping with their mood, they 

were somewhat loud and boisterous (1 Tr. 111, 204; 2 Tr. 341-42). 

Directly after the Lees bonarded, the lead or "A" flight attendant, Lorl Harmon, 

made an announcement to prepare doons for pushback. This standard 

announcement includes a requdst to turn cell phones off. The doors were secured (1 

Tr. 103,166-69, 197-98). i 

• i 

Sgt. Lee had iseen talkingj on his cell phone. The "B" flight attendant, Nancy 

Mason, whoise area of responsibility included the row in which the Lees sat. asked 

Sgt. Lee to turn it off. She got no response (1 Tr. 71, 75, 102-04). Ms. Mason 

proceeded to mid-cabin, where she performed her seatbelt demonstration and other 

necessary tasks. By this time thb aircraft had pushed back and was taxiing (1 Tr. 68, 

72,104-05,168). SgL Lee remained on his cell. Ms. Mason again approached Sgt. 

Lee and asked him to turn it off (i1 Tr. 104). He initially again feiled to comply (1 Tr. 

106). . 

Momentarily, Sgt. Lee brcike off his conversation. The Lees resumed 

conversing with each other, but rpore loudly than before. Their language also was 

liberally peppered with profanity (1 Tr. 16-17, 44, 47-48. 55-56. 58. 73). Although 

they sat several rows from any other passenger save one (who sat in the row in front 

of them), a fsw passengers complained about both the conversation's decibel level 

and the constant cursing (1 Tr. 7|S-77,128, 132-33, 178-79, 206, 232; .2 Tr. 342-43), 

Ms. Mason asked the Lees to toijie it down and to refrain from using profanity. 

Respondents reacted with inritatipn and agitation, she said, but complied (1 Tr 73-74, 

117-18; 2 Tr. 289, 296). As soori as she walked away, however, they resumed their 

loud and rude talk (1 tr. 54-55). iSgt. Lee loudly and continually stated that the crew 

should be grateful for hid servicer (1 Tr. 114). Probably Ms. Mason spoke to them 

three or four times altogether after the plane began to taxi, she saki (1 Tr. 125). She 

found the situation "Very uncomfortable." ^ 

* 1 Tr.84,114, 151,209, "Mst Mason («tified that the conteiit of Sgt. Lee's conversation was typically Thus: **I 

can't fucking believe she's telling me what \o do. Whne's the apinrcciation? I Just got fbcking back from Iraq.*" 

ITr. 116, 119. ( 
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Ms. Mason, who has beejn a Southwest Airlines flight attendant for tv^'enty-five 

years (1 Tr. 63). had tried everything she could think of to get these passengers to 

comply with her requests. She ^ilked to the front of the aircraft to discuss the matter 

with the other two flight attendariits, Ms. Harmon and Vicki Storey. She told them that 

the Lees' language and behavioi" was "not acceptable" (1 Tr. 180). She asked the 

other attendants to talk to them.' Ms. Harmon spoke to the captain about it. both on 

the aircraft interphone and in person (1 Tr. 254). She then went back and toW Sgt. 

Lee, who was back on the phone, to end his conversation. Like Ms. Mason, she 

initially received no response (1 [Tr. 66, 72, 77-78,120-21, 124,170). The plane 

continued to taxi. It eventually became airt>ome (1 Tr. 250). 

i 

The captain was disgusteid with the situation. He determined that he could 

divert the aircraft and land at Albjuquerque if necessary (1 Tr. 172). Ms. Hanmon, a 

twenty-one-year Southwest veteran who, as lead flight attendant, was ultimately 

responsible for the entire cabin, decided to give Respondents one final warning. She 

told them that the plane would refturn to the gate if they failed to comply with 

instructions. She specifically requested Sgt. Lee to turn off his cell (1 Tr. 170, 172-

73, 186, 198). Sgt Lee respondkl, in so many words, "Fine. Go ahead and land" (1 

Tr. 80. 204). j 

Sgt. Lee finally rang off (1 Tr. 170, 198-99). But his behavior became more 

aggressive, even truculent. As Ms. Harmon put It, he "got resi ugly about W (1 Tr. 

173, 204. 220). He thought his rights were being taken from him. He waved his dog 

tags in,Ms. Mason's face in a hostile manner, again suggesting to both Mason and 

Harmon that they should be grateful for his war service (1 Tr. 84,156, 204-05; 2 Tr. 

350, 360-61. 364). There vms "cpnstant mouth," Harmon added (1 Tr. 220). 

Finally, when Respondents realized that on account of them the aircraft was 

actually going to divert and land, they became contrite. They promised to behave (1 

Tr. 63-84). But it was too late. The captain landed in Albuquerque, at which point 

the Lees left the aircraft and were met by authorities (1 Tr. 123, 178, 220). 

A. Sgt. Lee (Docket CP05SW0012) 

t 

I 1. flndxngs and Conclusions 

The agency proved its case. I find and conclude that Sgt. Lee interfered with 

crew members in the performance of their duties in violation of §121.580. 

Complainant demonstrated that members of the flight crew were tied up to an 

unreasonable extent |n addressing Sgt. Lee's behavior, and as a result were unable 

to adequately perform their duties': These circumstances show that Sgt. Lee violated 

§121.580. I 

I 

The issues were, as "B" flight attendant Mason said, "^he cursing and the 

loudness" (1 Tr 116; see af$o 1 Tir. 140) and the brothers' refusal to comply with the 
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attendants' requests (1 Tr. 209)1. The evidence showed that Mason asked Sgt. Lee 

several times to turn off his cellphone and to tone down his loud and profane 

conversation with his brother (llTr. 86). Although Sgt. Lee claimed that he tried to 

get oft the phone as quickly as possible (2 Tr. 333), I do not credit ^i s testinrtony. I 

find that he failed to foHow instn^ctions. His behavior compelled Ms. Mason to enlist 

the help of tile lead flight attendbnt, Ms. Hanmon, who in turn consulted the captain. 

' Ms. Mason also spoke to the captain ( t Tr. 123); And the third flight attendant, Vicky 

Storey, also spoke to the Lees 01 Tr. 125-26). Thus four members of the crew 

needed to deal with Sgt. Lee's refusal to conform his coaduct. The crew was 

"consumed with handling the twp of them" (1 Tr. 148) ~ primarily, I find, with Sgt Lee 

- to the exclusion of all other obligations (1 Tr. 87, 110-11, 251-53). 

Paramount among the many duties of flight attendants is the safety of the 

aircraft and its passengers (1 Tn 152,176,249). The behavior of the Lees distracted 

the attendants from these duties! (1 Tr. 174-75, 256). (Seeing to passenger comfort 

is a strictly secondary obligation |(1 Tr. 152, 244)). The crew simply could not 

effectively attend to their primary obligations (1 Tr. 86-87). And these duties are 

particularly critical during taxiing and takeoff — when the conduct complained of took 

place (1 Tr. 200). 

Exacerbating the distractipns caused by Sgt. Lee's conduct was its escalating 

nature. The brothers' talk became louder and increasingly hostile (1 Tr, 115,122), 

Sgt. Lee's irritation seemed to intensify following each request to end his offensive 

behavior (1 Tr. 140). Ms. Masor^ found this unsettling. She was wonied that his 

attitude would continue to worsen (1 Tr, 84, 122). Even "mere' loudness on a fourhour flight could be a significant problem — especially when it is upsetting other 

passengers - because on a fligh^ of that length it risks spinning out of control (1 Tr, 

180-81). Sg t Lee's constant cursing also was an element in causing Ms. Mason's 

uneasiness (1 Tr. 209). The use of profanity can create a climate of apprahension 

sufficient to find the ofliendtng passenger in violation of §121.580 (see Avrgdbr Shallif, 

FAA Docket No. CP99EA0051, ihitial Decision of Administrative Law Judge Burton S. 

Koiko dated September 22, 2000, 2000 FAA Lexis 955). 

It is absolutely critical "to keep control of the aircraft," Ms. Mason said (i Tr. 

132). Control issues are especially sensitive since the multiple aircraft hijackings of 

2001. Aircraft crews are little disbosed to risk consequences of increasingly 

aggressive or hostile passenger behavior (see 1 Tr. 210). 

In this atmosphere, too, flight attendants are required to be acutely aware of 

their surroundings. They always'must t>e in a position to detect anything unusual. To 

best effectuate this standard, flight attendants should be staggered throughout the 

cabin (1 Tr. 254). But the Lees' behavior, particularly that of Sgt. Lee, foreclosed 

this. Sgt. Lee's conduct required the personal attention of two flight attendants. His 

action in aggressively shaking bi^ dog tags at the attendants confirmed their view that 

his presence on the aircraft unne|cessarily burdened and distracted them and made 

them uncomfortable (see 1 Tr. 151, 180). 
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In sum, Sgt. Lee's continued refusal to abide instructions and his loud and 

profanity-filled conversation caused the crew to be unreasonably distracted from its 

duties at a critical flight juncture. Further, his behavior made the flight attendants 

uneasy and caused them reasonably to fear that his aggressive tone and acts would 

escalate to the point at which the safety of passengers and crew would be unduly 

threatened. These circumstantes show amply that, Sgt. Lee interfered with the crew 

members In the performance cif their duties In violation of 14 C.F.R. §121.580.^ 

2 . Penalt y t 

[ 

I will set a civil penalty Against Sgt. Lee of $400. 

f 

Sgt. Lee's disruptive cornduct warranted the attention of four members of the 

flight crew at a critical stage of flight His behavior unreasonably risked airiine safety. 

It caused the flight to be diverted. These circumstances warrant a significant civil 

penalty. i 

On the other hand, the Ijulk of Sgt Lee's conversation (including the cursing) 

was directed to his brother (1 Tr. 44, 49; 2 Tr. 292). He did not engage other 

passengers (see 1 Tr. 19). I credit his testimony that he did not appreciate that his 

cursing offended other passengers (2 Tr. 362). And his profanity, while rude and 

disrespectful, was used more as an intensifier than as an instrument of direct hostllihv 

(1 Tr. 45^7). I 

In weighing all these considerations, I conclude that a civil penalty of $400 is 

appropriate. It will promote respect for proper conduct aboard aircraft in the context 

of the safety and security respohsibilities associated with air transport. It will act as a 

deterrent to Respondent and to[passengers generally. The penalty will-fulfill the 

statutory purpose. ] 

Qn the basis of the foregbing, I hereby assess a civil penalty of $400 against 

Respondent Michael P. Lee for a violation of 14 C.F.R. §121.580.* 

I 

^ Respondcnc contends essentially that the Istandard for a §121-580 violation should be objective. Respondents' 

Posi-Hearing Brief; pp. 31, 32. I have no need to reach this question. Complainant proved the violE±ion by 

either a subjective or objective standard. | 

^ Any ^peal fix>m this order to the Administrator must be in accordance with section 13.233 of the Rules of 

Practice, which requires 1) that a notice o^appeal be filed no later than 10 days (plus 5 for mailing) from the date 

uf this order and 2) that the appeal be per^cted with a written briefer memoiandnm not later than 50 days (plus 

5 for mailing) from the date of this order. Each is to be sent to TAA counsel snd particularly to ihe Tedera] 

Aviation Administration, SOO Independence Avenue, S.W., Washington, DC 20591, Attention: Appellate 

Doclcet Clerk, AGC-430, WUbur Wright Building - Room 2014. 
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B. Gaiy Lee (Dockst CP05SW0012) 

Findings and!Conclusions 

I find that the agency failed to prove its case. It did not show by a 

preponderance of the evidence'that Gary Lee interfered with the flight attendants in 

the perforniancs of their dutted in violation of §121.580. The Complaint against Gary 

J. L^e will be dismissed. I . ^ 

While Gary Lee participated in loud and profanity-filled talking with his brother 

the evideince failed to show th ^ his conduct, by itself, caused Interference with the 

duties of any crew member. T(ie Complaint, of course, was brought against Gary 

Lee Individually. The agency sjmply feiiled to demonstrate that the unusual and 

prolonged attentions paid to th^ brothers by members of the flight crew stemmed in 

any significant measure from the behavior or actions of Gary Lee. 

i - • 

On the basis of the foresloing. I hereby dismiss the agency's Complaint in 

Docket CP05SW0013." \ 

SO ORDEREDC. Goodwin 

U.S. Administralivc Law Judge 

AttBcIimeiit(s) -Service List 

' Sec n- 2. 
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FAA Docket Nos. 

CP05SW0013 

(Civil Penalty Action) 

CP0SSW0012 

^ 

SERVICE LIST 

0|RIGINAL & ONE COPY 

Hearing Docket | 

Federal Aviation Administration | 

800 Independence Avenue, S.W. 

Washington, DC 20591 r 

Att: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Room 2014' 

I ONE COPY 

Alexander Anolik, Esq. 

2107 Van >Jess Ave., Suite 200 : 

San Francisco, CA 94109-2&72 | 

I 

TEL: (415-)-67-3-3333 [ 

FAX: (415) 673-3548 j 

Stellamaris Williams, Esq. ! 

Safety Enfoicemoit Btanch 1 

Office of the Regional Counsel j 

Southwest Region, ASW-7 ' 

Fedeial Aviation Administration \ 

2601 Meachanx Blvd., 6E i 

FortWorth,TX: 76137-0007 ! 

I 

TEL: (817)222-5081 [ 

FAX: (ill ) 222-5092 \ 

The Honorable Richard C. Goodwin } 

Administrative Law Judge j 

Office of Hearings, M-20 j 

Room 5411 \ • 

U.S. Department of Transportation [ 

400 Seventh Street. S.W. [ 

Washington, DC 20590 • 

f 

TEL: Attorney-Advisor (202) 366-2139; Legal Assistant 6-5121 

FAX: (202)366-7536 | 

' Service was by U.S. Mail. For service in person or by expedited courier, use the following address: 

Hearing Docket, Federal AviatLott Administration, 600 Independence Avenue, S.W., Wilbur Wri^t Building - Room 

2014. Washington, DC 20591, Att: Hearing Docket Clerk, AGC-430. 
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pp. ; ,r,r.,; 

EXHIBIT "B'' 

tii . 
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Gary Lee Net Worth Statepient 

Residence;- assessed market 

value 

Retirement/ Savings 

Automobiles 

Cash in Bank 

Cash Value of Life 

Insurance 

Clothing and personal 

effects 

Rent 

Less sibrtgagc 

) .e-ss Taxes payable 

Net Value 

1 

1 0 

1 

I 2001] Ford Mustang 

83,000 miles 

$200.00 

0 

^ $5,000.00 

1 

t 

1 

1 i 

1 

TOTAL 

0 

0 

0 

0 

0 

$7,700.00 

S200,00 

0 

$5,000.00 

$12,900.00 
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! • ! 

EXHIBIT "C" 
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?. U1&/G27 

In the Matter of: 

MICHAEL P. LEE 

arid 

GARY J. I..EF. 

I 

U-S- DEPARTflVlENT OF TRANSPORTATION 

FEDERAL AVLVTIO N ADMINISTRATION 

Docket No.: CP05SW0012 

FAAEIRNo. 2005SW010038 

and 

Docket No. CP05SW00I3 

FAAEIRNo. 2G05SW010037 

Hon. Richard C. Goodwin 

AFFIDA.vn OF ALEX F. PEVZNER IN SUPPORT OF RESPONDENT GARY J. LEK'S 

APPLICATION FOR ATTORNEYS' FEES UNDER THE EQUAL ACCESS TO JUSllCE 

ACT 

Ale.x F. Pevzner, being first duly sworn, states as follows: 

I 

1. I am an attorney at law Hcensed to practice before all of the courts of tiie State of 

Cahfomia and I am an associate in the law ftrtn of Alexander Anolik, APLC, attorneys of record 

for Respondents in the above action. I can completely testify lo die following from my 0"wn 

knowledge, except as to those matters stated on information and belief and to those matters 1 

beheve them to be true. 

2. Alexander Anolik, APLC, jointly represented the Respondents Gary Lee and 

Michael Lee on 2. pro bono basis. ; 

3. In connection with the Respondent Gary Lee's Application for an Award of 

Attorneys' Fees under the Equal Access to Justice Act ("EAJA"), all the attorney fees and costs 

inc\UT(^d in representing Respondent Gary I.ee in the above captioned action are consoHdated in 

ihe invoice attached hereto. • 

4. Attorneys fees and cost? for which recovery is sought herein, were in the amount 

of $8,000.00, representing 64 hours of woik performed at the rate of $ 125.00 per hour, which is 

half of the total 128 hours of work performed on behalf of both Respondents. Respondent Gary 

Lcc costs in this case totaled $668.15, which is half of the total expenses incurred represeaiting 

both Respondents Michael Lee and Gaiy Lee. The total sum of attorney fees and costs totaled 

$8,668.15. See counsel's billing record of fees and expenses, attached hereto. 
05/25/2010 15:48 FAX 2024935142 FAA 

?M ALEXANDER ANOLIK.PLC 

•> DM S 

'AX No, .;:573354 8 

21019/027 

01':, ;/'• 

I 

5. It is also averred that the billing rates of Alexander Anolik APLC is in excess of 

S125.00 per hour, the maximum rate of recovery currently peimitted by law. The origina] sum of 

attorney fees and expenses incurred repptesenting the Respondents totals $32,022.80, representing 

128 hours of work performed at onr liim's rate, which varies from $225.00 to $395.00 per hour. 

The loial amoimt of $32,022.80 includes expenses, apart from attorney fees, which total 

$1,336.30. ! 

6. In view of the efforts and the hours spent to represent Respondent Gary Lee in 

this proceeding, I affiim the reasonableness of the fees charged to obtain comparable legal 

services in this state. - i 

7. I am of the opinion the Eederal Aviation Administration was not stibstantially 

justified in seeking ro impose a civil fine. 

I declare under penalty of perjury under the laws of California that the foregoing is true and 

correct and that this affidavit was execAted on September ^ , 200(5. 

Alex F. Pevsner 

STATE OF CALIFORNIA 

COUNTY OF SAN FRANCISCO 

) 

)! 

SS. 

I 

On 9/ y , 2006, before me, the undersigned, a Notary Pubhc for the State of 

California, personally appeared ALEX F. PEVZNER, ESQ., personally known to me to be the 

person whose name is subscribed to the within instrument and acknowledged that he executed 

die same, in lus authorized capacity, and that by his signature on the instnimcnt, the person, or 

the entiry uponbchalf of which the person acted, executed tiiis in.strument. 

WITNESS my hand and official seal. 

Notary .Public ^ 

•HAYS 

ConwnlHlen # 1546690 

NoloiY Pmie - Cdfomia 

Son Fnnctoco Courty 

1 

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05/25/2010 15:49 FAX 2024935142 FAA 

SEP/'08/2006/F1?I 03:45 PM ALEXANDER ANOLIK.PLC 

+ DMS 

'AX No, 4156733548 

1026/02 7 

P. 026/027 

VERIFICATION 

I, Gaiy Lee, bereby verify under peoahy of perjury to the best of my knowledge that thci 

I 

factual represesiHiions and satanena made in the forgoing EAJA Application are tiue 

r 

and conrect. 

Dated: September y , 2006 

la. 
05/25/201 0 15:4 9 FAX 202493514 2 FAA •> DMS 1027/02 7 

••• ;; :::•= --: 03:45 ?v ALEXANDER ANOLIK.PLC n. i Ho,^i56"3354£ p ,vv-,. . 

[ 

CERTIFICATE OF SERVICE 

I hereby certify that the foregoing documents: EAJ Application and Accompanying 

Exhibits, have been served on this Ijate, as follows, to: 

The Honorable Richard C, Goodwin 

r 

Administcative Law Judge \ 

Office of Hearings, M-20 

Room 5411 : 

U.S. Department of Transportationi 

400 Sevmth Street, S. W. 

Washington, D.C. 20590 , 

Fajc: (202) .366-7536 

Via facsimile and certified mail, return receipt requested 

i 

Stellamaris Williams, Esq., 

Federal Aviation Administration • 

Safety Enforcement Branch l 

Office of Regional Coianse] 

2601 Meacham Blvd., 6-E ! 

Fort Worth, TX 76137-0007 

Fax:(817)222-50.92 • 

Via facsimile and certified mail, reStum receipt requested 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

ATTN: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Room 2014 

Fax: (202) 493-5020 ; 

Via facsimile and certified mail, return receipt requested 

Dated this % day of September J2006-

AlSk F. Pevzner, F.sq. 

Alexander Anolik, A PLC. 

2107 Van Ness Ave., Suite 200 

San Francisco, CA 94109 

Attorneys for Respondent Gary J. Lee