2t PARTMENT OF 

SERVED AUGUST 24, 2010 . "^tf OTP^TO 

?m AUG ?U P 3: 51 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

Application of 

GARY J. LEE 

FAA DOCKET NO. CP10SW0008, successor to CP05SW0013 

DMS No. FAA-2010-0536, successor to FAA-2005-22084 

(Equal Access to Justice Action) 

INITIAL DECISION 

DENYING APPLICATION FOR ATTORNEY'S FEES 

AND OTHER EXPENSES 

Background 

This application under the Equal Access to Justice Act, 5 U.S.C. §504, 

originated in a proceeding in which the Federal Aviation Administration ("FAA" or 

"the agency) charged Gary J. Lee ("Gary Lee" or "Applicant") with a violation of 

§121.580 of the Federal Aviation Regulations ("FARs"), 14 C.F.R. §121.580. The 

charge stemmed from a Southwest Airlines flight of February 23, 2005, on which Mr. 

Lee and his brother, Sgt. Michael P. Lee ("Michael Lee"), were passengers. The Lees 

sat together. In a separate action the agency also charged Michael Lee with a 

§121.580 violation (Docket No. CP05SW0012, DMS No. FAA-2005-22082). The 

agency alleged in each matter that the respondent had interfered with a 

crewmember in the performance of the crewmember's duties.' The agency sought a 

civil penalty of $1,100 against each. The cases were consolidated. 

Following an oral evidentiary hearing, I issued an Initial Decision (I.D.) in 

which I found that Michael Lee violated §121.580. I assessed a civil penalty of $400 

against him. I also found the agency had not proven that Gary Lee, the Applicant 

here, committed a §121.580 violation. I dismissed the Complaint against him 

{Federal Aviation Administration v. fvficliael P. Lee and Gary J. Lee, FAA Docket Nos. 

CP05SW0012 and CP05SW0013, Initial Decision of Administrative Law Judge 

Richard C. Goodwin, served July 31, 2006). Neither party appealed. The cases 

became administratively final. 

' Section 121.580 states: "No person may assault, threaten, intimidate, or interfere with a crewmember in 

the performance of the crewmember's duties aboard an aircraft being operated under this part." 
Gary Lee filed an application for attorney's fees and other expenses under the 

Equal Access to Justice Act ("EAJA" or "the Act"), 5 U.S.C. §504, and implementing 

regulations 14 C.F.R. Part 14. The agency answered in opposition. For the reasons 

set forth below, I deny the application. 

Standards 

The EAJA requires an agency conducting an "adversary adjudication" to 

award fees and other expenses to a prevailing party (other than the United States) 

unless the position of the agency was "substantially justified" or special 

circumstances make an award unjust (5 U.S.C. §504(a)(l)). The FAA's rules 

implementing the statute essentially track its language (^ee§14.04). The burden of 

proof that an award should not be made rests with the agency. 14 CFR'§14,04(a). 

It is not disputed that the underlying civil-penalty matter constituted an 

adversary adjudication in which the Applicant prevailed. Nor does the agency 

assert that "special circumstances" ought to foreclose a fee award. The parties 

differ on whether the agency was "substantially justified" in bringing and 

maintaining the action. 

An action is substantially justified when it has a reasonable basis in law and 

fact. Pierce v. Underwood, 487 U.S. 552,565 (1988); 14 CFR 14.04(a); McAae/ 

Edward Wendt, FAA Order 93-9 (March 25,1993), p. 3. The charges must be 

justified to the degree that could satisfy a reasonable person. The standard is met if 

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

appropriateness of the contested action. Pierce v. Underwood, p. 565. The agency 

must show (a) a reasonable basis in truth for the facts alleged; (b) a reasonable 

basis in law for the legal theory propounded; and (3) a reasonable connection 

between facts and theory. Valley Air Services, Inc., FAA Order No. 95-27 (December 

19,1995), p. 6, pet. forreconsid. denied, FAA Order No. 96-15 (May 3,1996); Smith 

V. National Transportation Safety Board, 992 F.2d 849,852 (8* Cir. 1993). 

Failure to prevail does not raise a presumption of lack of substantial 

justification. It must not be assumed that the government's position was not 

substantially justified simply because it lost on the merits. Morgan v. Perry, 142 

F.3d 670,685 (3'-d Cir. 1998); Bay Area Peace Navy v. United States, 914 F.2d 1224, 

1231 n. 4 (9* Cir. 1990); Michael Edward Wendt, FAA Order 93-9 (March 25,1993), 

p. 3. The agency need not demonstrate that it had a substantial likelihood of 

prevailing to prove that its litigation position was substantially justified. Kiareldeen 

V. Ashcroft, 273 F.3d 542.554 (3'-d Cir. 2001); Michael Edward Wendt, FAA Order 

93-9. 

The determination of "substantial justification" encompasses a review of the 

entire proceeding. Whether "substantial justification" has been shown will be 

decided "on the basis of the administrative record, as a whole, which is made in the 
adversary adjudication ..." 5 U.S.C. §504(a) (1). The government's position consists 

not only of the complaint but also of its posture asserted in supporting the 

complaint's allegations during the pendency of the proceeding. Krecioch v. United 

States, 316 F.3d 684, 689 (7* Cir. 2002). "Substantial justification" connotes an 

active, searching inquiry into the quality of evidence advanced and the overall .^ 

reasonableness of the agency's position. United Brotherhood of Carpenters and 

Joiners v. NLRB, 891 F.2d 1160,1163 (5* Cir. 1990). 

Findines and Conclusions 

1 find and conclude that the agency's position in the underlying matter was 

substantially justified. Its position was reasonably based both in law and fact. The 

facts adduced were reasonably connected to the violation charged. I will deny the 

Applicant's application. 

My conclusion that the agency's position was substantially justified rests on 

the idea that reasonable people could differ in their conclusions drawn from the 

salient facts. Although the Initial Decision ultimately determined otherwise, I 

conclude that the facts reasonably could support a determination that Gary Lee 

violated 14 C.F.R. §121.580. 

The agency's case in the underlying matter rested on its contention that the 

Applicant's behavior interfered with the duties of the flight attendants sufficiently to 

make out a violation of §121.580. In support, the agency introduced into evidence a 

number of facts. It showed that the Applicant conversed loudly and peppered his 

speech with profanity. His talk led to complaints from other passengers - despite 

sitting several rows back from all but one other passenger (other than Michael Lee) 

~ and warranted at least three visits from one of the flight attendants. This 

attendant had repeatedly asked the Applicant and his brother to tone down their 

conversation and to refrain from cursing, only to have the conversation soon revert 

to its objectionable nature (Initial Decision of Administrative Law Judge Richard C. 

Goodwin ("I.D."), p. 2). The brothers' talk in fact became increasingly hostile (I.D., 

p. 4). Frustrated with the brothers' non-compliance and uncomfortable with the 

situation as a whole, this attendant consulted the other two flight attendants. The 

captain also was consulted. One of the other attendants issued a further warning to 

Applicant (and his brother) to comply with crew instructions. The third flight 

attendant spoke to them as well (I.D., p. 3-4). According to one of the flight 

attendants, the crew was "consumedwith handling the two of them" (1 Tr. 148; I.D., 

p. 4 (emphasis supplied)). 

The FAA contended that Gary Lee's conduct distracted the flight attendants 

from their primary duty of securing and maintaining a calm, safe, and orderly 

environment aboard the aircraft sufficient to find a §121.580 violation. In support 

of this conclusion, testimony suggested that the Lees' intensifying loudness and 

hostility, over a flight lasting four hours, could have raised a significant safety threat. 
The crew could not confidently predict that the Applicant's troublesome conduct 

would not continue to escalate. They were unwilling to accept a risk of that 

magnitude to the critical need to retain control of the aircraft. Law and order in an 

enclosed capsule hurtling forward at 30,000 feet must be maintained, so even a 

relatively small risk may not be tolerated. The Applicant's cursing in itself raised 

the possibility of a violation. Profanity alone can create a climate of apprehension 

aboard aircraft sufficient to find a §121.580 violation (I.D., p. 4). 

The facts showed that the Applicant's behavior distracted the crew. 

Testimony suggested that it in fact "consumed" them. All three flight attendants 

directly addressed the Applicant's conduct, and the captain was consulted about it. 

The Applicant's loud talk and cursing appeared to escalate, despite repeated 

instructions to stop. He helped create a sense of apprehension among the crew. This 

evidence could well make out a case of interference with the flight crew vfolating 

§121.580.^ 

Whether Gary Lee's interference was consequential enough to constitute a 

violation is a matter of a little more, or a little less. Passenger interference cases 

can walk a factual fine line, about which reasonable people can differ. The agency is 

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

enforcing and ensuring air safety. Against this background, I conclude that the 

agency was substantially justified in bringing and maintaining the underlying action. 

The FAA met its burden of demonstrating that it had substantial justification 

under the Equal Access to Justice Act to bring and to maintain the underlying civilpenalty proceeding against Gary Lee. 

For the reasons stated, I deny Gary Lee's application.' 

KichardCUoodwMrv!~j 

Administrative Law Judge 

Attachment - Service List 

^ A flight attendant also could be intimidated in violation of §121.580 by a passenger addressing her in a 

"loud, angry" voice. Evgeniy V. Ignatov, FAA Order No. 96-6 (February 13, 1996). See n. 1, p. 1. 

^ This decision becomes final 30 days after its issuance unless a party appeals or the FAA Decisionmaker 

takes review under his or her own initiative. 14 CFR § 14.28(a). The appeal must be either (a) mailed to 

the Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, D.C. 20591, 

Attention: Hearing Docket Clerk, AGC-430, Wilbur Wright Building - Suite 2W1000; or (b) delivered 

personally or via expedited courier service to the Federal Aviation Administration, 600 Independence 

Avenue, S.W., Wilbur Wright Building - Suite 2W1000, Washington, D.C. 20591, Attention: Hearing 

Docket Clerk, AGC-430. 

f^4 
FAA Docket No. CP10SW0008 

(Civil Penalty Action) 

CORRECT SERVICE LIST 

ORIGINAL & ONE COPY 

Hearing Docket 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Att: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Room 2014* 

ONE COPY 

Alexander Anolik, Esq. 

2107 Van Ness Ave., Suite 200 

San Francisco, CA 94109-2572 

TEL: (415)673-3333 

FAX: (415) 673-3548 

Stellamaris Williams, Esq. 

Safety Enforcement Branch 

Office of the Regional Counsel 

Southwest Region, ASW-7 

Federal Aviation Administration 

2601 Meacham Blvd., 6E 

Fort Worth, TX 76137-0007 

TEL: (817)222-5081 

FAX: (817)222-5092 

The Honorable Richard C. Goodwin 

Administrative Law Judge 

Office of Hearings, M-20 

Room 5411 

U.S. Department of Transportation 

400 Seventh Street, S.W. 

Washington, DC 20590 

TEL: Attomey-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 Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building - Room 

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