:::pi c;"T'v-:oM!ON 

SERVED AUGUST 16, 2010 

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 

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

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

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

(Federal Aviation Administration v. Michael 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." 
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Gary Lee filed an application for attorney's fees and other expenses under the 

Equal Access to Justice Act ("EAJ.^" pf "A^ A0"), 5f y^,C. §504, and implementing 

regulations 14 C.F.R. Part 14. Thjaig^cy tol^ered in opposition. For the reasons set 

forth below, I deny the application.! 

Standards 

The EAJA requires an agen|y CiMKlt^tt^an "adversary adjudication" to award 

fees and other expenses to a prevail|ng«i^ii^§[#i||^ than the United States) ui^ess the 

position of the agency was "substaniially jus^fied" or special circumstance snake an 

award unjust (5 U.S.C. §504(a)(l)).j f i Fi^'Anrtfcs iBi9)lementing the statute 

essentially track its language (see § 14.04). The buftien of proof that an awaijd should not 

be made rests with the agency (14 qFiiP#4lil<l^.; '; .^Xi . . ...;.,vr ^(.-iii- • . • • I • 

It is not disputed that the un4^^$^g #vii^penftlfyi^^er constituted an adversary 

adjudication in which the Applicantlprevaiie4 Nor does|Qie agency a^ert tl»t "special 

circumstances" ought to foreclose a fee awai^. The patties differ on whether the agency 

was "substantially justified" in brialiiiigiHi^liUEllattaildi^Ihe action. 

An action is substantially j\«|^k^wJ|it|lhiii^fti#sonable basis in law and fact. 

Pierce v. Underwood, 487 U.S. 552| 565 (19^8); 14 CFR 14.04(a); Michael Edward 

Wendt, FAA Order 93-9 (March 25,h 993), p. 3. The charges must be justifi#««the 

degree that could satisfy a reasonablj 

dispute," or if reasonable people > 

action. Pierce v. Underwood, p. 565 

truth for the facts alleged; (b) a reas(j 

and (3) a reasonable connection bet 

Order No. 95-27 (December 19,19S 

pcs^on. The standi is met if there is a "genuine 

"^Sm^-MQ the#^|^^eness of thfK^tested 

Tl^a§|a% Agl^^ a reas(»iia|^'bBSis in 

M1^i0^^§&i0x£^ legal tiijeory ^^pstuiided; 

i^ikiMati&lihe^^^Vidl^ AirSe^vlGei^M}.y¥AA 

})*?p. 6i^t,0rm»0i d denied, l?Aa%^i^fe>No. 

96-15 (May 3, 1996); Smith v. Natit^ial Tramf^^mkm^^ty Board, 99f2 Fs3tf 849, 852 

>th (8'" Cir. 1993). -«:-

Failure to prevail does not ra|s»#pfesal8«iil<l<a^|f^ 

It must not be assumed that the goy4iSEJBj^si|)04ii0o^0^ substantial^ipSlied 

simply because it lost on'the merits! Uhrganv. Perry, 141F3d 670,685 (3^^^.4998); 

Bay Area Peace Navy v. United Statk 914 F.2d 1224,1231 n. 4 (9"' Cir. 199% Michael 

Edward Wendt, FAA Order 93-9 (Mte^ti^ ^^ f .^^gipie agency iwcdi^M 

demonstxate that it had a substantial #|e|iig^of4^B^I^^M^ to prove #atd^|||i||idon 

position was substantially justified. £|^p|^^^^/^^tp^27 3 ¥3d 541, isilp^^u-. 

2m\); Michael Edward Wendt, FA4(m^^ - s t unt. 

i ...,' • ^ ,- \. , 

The determination of "substa4^^il||||i||^"li^b||^ 

entire proceeding. Whether "subs^^i|p|^y|i^' * ll^l^ife^ shown vM^lti^^cHed 

"on the basis of the administrative r^id j as aE|wI](6le, Wfaflh is made i]a#B4i|fl4sary 

adjudication ... " 5 U.S.C. §504(a) (|). The govMiunent's position consists fflc«t only of 

the complaint but also of its posture ^serted id suppor^g^jQie complaint's a&Jj^pns 

during the pendency of the proceeding. J>^c%^ v. Z/ji^s^^^S^^^ 316 F.3diS^ 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 (S'*" Cir. 

1990). 

'V 

Findings 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. 1 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 "consumed with 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 also. Profanity alone can 
create a climate of apprehension aboard aircraft sufficient to find a §121.580 violation 

(l.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 ApplicaM'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 v^th the flight crew violating §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 p«!)ple can diffi^. The agency is entitloi 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 maintaimng 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 main&in the underlying civilpenalty proceeding against Gary Lee. 

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

ichard C. Goodwin 

Administrative Law Judge 

Attachment - Service List 

^ A flight attendant also could be intimidated ii^ violation of §121.580 by a passenger addressiag her ia a 

"loud, angry" voice. Evgeniy V. Ignatov, FAA'prderNo.96-6(FebriSMy 13, 1996). Seen. 1,p, 1. 

^ This decision becomes final 30 days after its ilsuance unless a party appeals or the FAA DecisiiVim^er 

takes review under his or her own initiative. 14 CFR §14.28(a). Thea|!<pcal must be either (a) il^led to 

the Federal Aviation Administration, 800 Independence Avenge, S<W., Wtehington, D.C. 20591, 

Attention: Hearing Docket Clerk, AGC-430, Wjllbur Wrigtrt 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. 

i 
FAA Docket No. CP10NM0005 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000' 

ONE COPY 

Kenneth A. Scott 

Blair Hilty, Attorneys at Law 

14711 Pebble Bend Drive 

Houston, TX 77068-2923 

TEL: 713-862-5599 

FAX: 713-868-9444 

Scott R. Morris, Complainant's Counsel 

Office of Regional Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Administration 

1601 Lind Avenue, S.W. 

Renton, WA 98057 

TEL: 425-227-2007 

FAX: 425-227-1007 

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: Attorney-Advisor 202-366-2139 

Legal Assistant 202-366-5121 

FAX: 202 366-7536 

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

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building—Suite 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.