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Jl? m- b A li^ GJ^ASHINGTON,D.C. DEC 2 8 2011 

HEARING DOCKET 

) 

SUNQUEST EXECUTIVE AIR CHARTER, INC. J 

) FAA ORIGINAL 

Applicant, ) DOCKET No. CP08WP0004 

) 

V. ) EAJA No. 

) Judge: Hon. Richard C. Goodwin 

Administrator, ) 

FEDERAL AVIATION ADMINISTRATION ) fJ^M ^ ' •:^0//- l^^ ^ 

) 

Respondent. ) 

) 

APPLICAllON FOR AN AWARD OF ATTORNEY FEES AND OTHER 

EXPENSES PURSUANT TO TFIE EQUAL ACCESS TO JUSTICE ACT (EAJA) 

Pursuant to 5 U.S.C. §504 and 14 CFR §8216.1 el seq.. Applicant, Sunquest 

Executive Air Charter, inc., by ils undersigned counsel, hereby applies for attorney fees 

and costs incurred in the matter of Administrator vs. Sunquest Executive Air Charter. 

Inc., FAA docket number CP08WP0004 and the appeal iherelrom bearing designation 

No. FDMS FAA2008-0238. Ihe following points are made in support of this 

application: 

1. The official record of this matter discloses that: 

After many changes and multiple alterations, corrections, additions and the like, 

issues were linally liramed prosecuting claims against respondent based on allegations 

that its recordkeeping procedures were inadequate as follows; 
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a. On a single occasion January 24, 2005, the procedure followed by 

respondent and previously approved by all of the respondent's principal 

operations inspectors was inadequate in tliat an inspector would have to 

look outside ofihe time and duty records in order lo confirm compliance. 

b. 2 separate flights were charged as violations, namely, on January 

24, 2005 and on March 9, 2005. One was resolved in favor of the Agency, 

the other for Respondent. These actions were included in Smitli's duty 

time records but not in his flight lime records (Stips. 11112, 13, 11, 22). 

Complainant contends that Sunquest should have recorded these flights as 

flight time under the category of "other commercial flying," 

(i) On .Tanuary 24, 2005, Mark Smith of Sunquest 

provided 1 3 hours of flight training to a company pilot. 

(ii) On March 9. 2005, Captain Smith gave a company 

pilot a check ride lasting 1.5 hours. 

c. Respondent's flight and duty time records did not reflect his 

helicopter pilot time for the Los Angeles Police Department over which on 

at least 17 dates, he exceeded the lime duty limitations found in part 135. 
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2. Applicant is a prevailing party in that; 

As to a., the Administrative Law Judge found that respondent was in 

technical non-compliance wiih F.A.R. §135.63 (a)(4)(vii) but recognized that the 

Sunquest Executive Air Ciiarter, Inc. form for logging pilot flight time was accepted for 

years by FA.A. Inspectors assigned lo supervise the carrier's practices. They were 

incorporated into Sunquest's Operations Manual. This circumstance did not allow 

Sunquest to escape liability but was considered a mitigating factor on the determination 

of penalty. Specitlcally, the fact that Sunquest's recordkeeping practices passed muster 

several times understandably could suggest to it that these practices were acceptable and 

consistent with applicable F.A.R.'s. Against this background. Sunquest Executive Air 

Charter, Lie, had no evident reason to change them to conform to what the Agency deems 

acceptable today. 

As to b.. the Admini.strative Law Judge found (a) that on the alleged single 

occasion, namely March 5, 2005, the Administrator contended that Mark Smith of 

Sunquest Executive Air Charter, Inc. provided 1.3 hours of flight time as the company 

pilot. 'Ilie Administrative Law Judge found that this single flight (b) must be considered 

''other commercial flying." 

On January 24, 2005, Mark Smith of Sunquest provided 1,3 hours of flight 

training to a company pilot. The Administrative Law Judge found that the January 24, 

2005 flight (a training flight), could not be considered "other commercial flying.*' 
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As to c ; the tlights for Los /\jigelcs Police Department, the Administrative 

Law Judge found that the Agency failed to prove a violation, holding that the helicopter 

was a stamtory public aircraft and as such was not subject lo F.A.A. jurisdiction. This 

determination formed the basis for an appeal by the Administrator. On appeal the 

Department of Transportation affirmed, holding that it did not even have to get to that 

issue because the Agency had not established a more basic element, namely, that the 

Respondent's pilot was even being paid for his L.A.P.D. flying. 

When the Agency appealed to the Department of Transportation it did so 

solely on the basis of the alleged violation based on flying for the L.A.P.D. On 

November 22, 2011, the Department of Transportation affirmed the ruling of the 

Administrative Law .Tudge. concluding that the F.A.A. even failed to show tliat Smith's 

L.A.P.D. flying met all the elements of "other commercial tJying." 

The positions of the F.A.A. that were not substantially justified include the 

rulings in favor of petitioner regarding the Januao' ^4* flight and the entirety of count 

three, namely the flying for the L.A.P.D., there appears to be no justiflcation even from 

the beginning, for the charges that were asserted against Sunquest Executive Air Charter, 

Inc. Moreover, even as to the single ruling in favor of the F.A.A.. the Administrative 

Law Judge found that there were substantial mitigating factors. 

Applicant's net worth did not exceed $2,000,000 at ihe initiation of all of 

the foregoing proceedings. A detailed exhibit showing the net worth of Applicant at the 

initiation of all of the proceedings will be presented at the hearing of this Pciiiiun, or 

sooner, if requested by the Agency. 
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The total fees and costs for which an award is sought is S 25,200.53. 

A detailed exhibit showing the time spent and costs incurred will be presented at the 

hearing of this Petition or sooner if requested. 

I hereby certify under penalty of perjury that the foregoing informaiion 

provided in this application is true and correct. 

Respectfully submitted, 

LAV^ J^FFICE OF ARTIRJR WASSERMA N 

Dated: December 20, 2011 

' ARTT^UR WASSERMAN 

Counsel for Respondent 

16380 Roscoe Boulevard, Suite 120 

Van Nuys. California 91406-1221 

Telephone; (818)895-8234 

Facsimile: (818)895-0675 
'r^ . ^ nH<; 01006/00 6 

01/05/201 2 ie:l 5 FAX 2024335142 FAA • UH ^ ^ 

CERTIFICAIE OF SERVICE 

1 hereby certify that on this date I placed in ihe United States Mail, postage 

prepaid, the original of the attached document (APPLICATION FOR AN AWARD OF 

ATTORNEY FEES AND OTHER EXPENSES PURSUANT TO THE EQUAL ACCESS TO 

JUSTICE ACT (EAJA) ) and 2 copies, addressed to: 

Federal Aviaiion Administration 

800 Independence Avenue, SW 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building, Suite 2W1000 

And a copy sent United States Mail, postage prepaid, a true copy addressed to: 

Joseph A. Conte, Manager 

Air Carrier & Operations Law 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

Washington, DC lO?*?! 

Office of Regional Counsel 

Western Pacific Region, AWP-7 

P.O. Box 92007 

Los Angeles. CA 90009-2007 

The Honorable Richard C Goodv-in 

Adminisu^iive Law Judge 

Otiicc of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue. S.E. 

East Building, Ground Floor Room El2-320 

Wa^ihington, DC 20590 

Dated: December 20, 2011 

Christina Merrick 

LAW OFFICE OF ARTHUR WASSERMAN 

16380 Roscoe Boulevard. Suite 120 

Van Nuys, California 91406-1221