UNiTEb STATES COURT OF APPEALS 

n .C^sjRicT OF COLUMBIA CIRCUIT ^^ ^_ 

' ' 333 Constitution Avenue, NW |-«| f— | , H " I \ /1" ^ r~'\ 

Washington, DC 20001-2866 ^ *i-.TM~'^w/L^ 3 */ £ ~ i J 

PHbrte: 202-216-7000 | Facsimile: 202-219-8530 ^ 

JUL t 8 2011 

HEARING DOCKET 

AGENCY DOCKETING STATEMENT 

Administrative Agency Review Proceedings (To be completed by appellant/petitioner) 

1. CASE NO. 2. DATE DOCKETED: 07/13/2011 

3. CASE NAMb (lead parties oniy)Green Avi^ n Management ( ^ ^ Federal Aviation Administration 

4. TYPE OF CASE: |x Review T Appeal T Enforcement T Complaint , T Tax Court 

5. ISJi^ S CASE REQUIRED BY STATUTE TO BE EXPEDITED? C Yes (^ No 

IT Yto, CItG SI3tUtG 

6. CASE.INFORMATION: ^ . , ^ 

a. Irfenlify agency whose order is to be reviewed: Federal Aviation Administration 

b. Give agency docket or order number(s): p^o^ Order No. 2011 -9 

c. Give date(s) of order(s): June 13,2011 

d. Has a request for rehearing or reconsideration been filed at the agency? C Yes ^ No 

If so, when was it filled? By whom? 

Has the agency acted? C Yes ^ No 'f so, when? 

e. Identify the basis of appellant's/petitioner's claim of standing. See D.C. Cir. Rule 15(c)(2): 

Green Aviation Management Co., LLC files this appeal/petition for review under 5 U.S.C. 504(c) 

(2); 14 C.F.R. 14.29; 49 U.S.C. 46110; and 14 C.F.R. 13.235(a)-(c), concerning the denial of an 

r .apDlication for fees and, expejases under 5, U.S.C. 504 of the.Equal Access.tp Justice Act lEAJAJ.jn 

f. Are any otner cases involving the same underlying agency order pending in tnis Court or any othery 

^ Yes ^ No if YES, identify case name(s), docket number(s), and court(s) 

g. Are any other cases, to counsel's knowledge, pending before the agency, this Court, another Circuit 

Court, or the Supreme Court which involve substantially the same issues as the instant case presents? 

^ Yes ^ No- If YES, give case name(s) and number(s) of these cases and identify court/agency: 

h. Have the partie^ttempted to resolve the issues in this case through arbitration, mediation, or any other 

alternative fop^di^t e resolution? r Yes ^ No If YES, provide program name and participation dates. 

//^ ^ 

Signatursj ^ Dale •'"'V'3. 2° " 

Name of g^msel jOrAppellant/Petitioner Gregory S. Winton, Esq. • 

AddresyOcfe^esearch Court, Suite 450, Rockville, MP 20850 

E-Mail Greg@AviationLawExperts.com Phone ( 301 ) 294-8550 Fax ( 301 ) 294-2525 

ATTACH A CERTIFICATE OF SERVICE 

Note: if counsel for any otiier party believes that the information submitted is inaccurate or incomplete, counsel may so 

advise the Clerk within 7 calendar days by letter, with copies to all other parties, specifically referring to the 

challenged statement. 

USCA Form 41 

August 2009 (REVISED) 
li^ "mE ^UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Green Aviation Management 

Co., LLC, 

Petitioner, 

V. 

FEDERAL AVIATION 

ADMINISTRATION, 

Respondent. 

Petition for Review 

PETITION FOR REVIEW 

Green Aviation Management Co., LLC, Petitioner herein, by and through 

undersigned coimsel, hereby files a petition to this Court for review of a final agency 

Order rendered by the Administrator of the Federal Aviation Administration (hereinafter 

the "FAA") in The Matter of Green Aviation Management Co., LLC, FAA Order No. 

2011-9, served on Jtme 13,2011 (Exhibit 1, attached hereto), involving the denial of an 

application for attorney fees and expenses imder 5 U.S.C. §504 of the Equal Access to 

Justice Act. 

Green Aviation Management Co., LLC files this appeal under 5 U.S.C. 

§504(c)(2); 14 C.F.R. 14.29; 49 U.S.C. §46110; and 14 C.F.R. §§13.235(a)-(c). 

Petitioner is the affected party and therefore prays that this Court will review and reverse 

the FAA Administrator's Decision and Order (FAA Order No. 2011-9, served on June 

13,2011) (Exhibit 1, attached hereto). 
Respectfully submitter 

GRE< 

Onei 

Suite. 

Rocyille,MD 20850 

(30/ 294-8550 

Signed this 13th day of July, 2011. 
EXHIBIT 1 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINQTON, DC 

In the Matter of; GREEN AVIATION MANAGEMENT CO., LLC 

FAA Order No. 2011-9 

Docket No. CP07EA0003 (EAJA) 

FDMS No. FAA-2007-26989' 

Served: June 13,2011 

DECISION AND ORDERS 

The Federal Aviation Administration ("FAA") brought a civil penalty action 

against Green Aviation Management Company, LLC, d/b/a Green Air ("Green Air") for 

allegedly violating several federal aviation regulations.' The FAA sought a $33,000 civil 

penalty. Later, the FAA withdrew its complaint and the ALJ dismissed the case with 

prejudice in accordance vAlh the requirement of 14 C.F.R. § 13.215. Green Air then 

applied for attorney's fees under 5 U.S.C. § 504 of the Equal Access to Justice Act 

("EAJA"). Administrative Law Judge ("ALJ") Isaac D, Benkin denied Green Air's 

' Generally, materials filed in the FAA Hearing Docket (except for materials filed in 

security cases) are also available for viewing at www.regulations. gov. 14 C.F.R. § 13,210(e)( 1). 

^ The Administrator's civil penalty decisions, along vyith indexes of the deeisions, the rules 

of practice, and other information, are available on the Internet at the following address: 

vnvw.faa.goy/about/offlcej}rg/headqucirters_offices/agc/poljidjudication/AGC400/ 

Civil_Penalty. In addition, Thomson ReutersAVest Publishing publishes Federal Aviation 

Decisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw 

(FTRAN-FAA database). For additional information, see the Web site. 

' Specifically, the FAA alleged that Green Air violated the following regulations: 

(1) 14 C.F.R. § 119.5(1) (no person may operate an aircraft under Part 135 in violation of 

appropriate operations specifications); (2) 14 C.F.R. § 135.343 (no certificate holder may use a 

person as a crewmember unless that crewmember has completed the" appropriate training); and (3) 

14 C.F,R. §91.13(a) (no person may operate an aircraft in a careless or reckless manner so as to 

endanger the life or property of another). 
application on the ground that the agency's position was substantially justified." This 

decision holds that as a threshold matter, Green Air was not a "prevailing party" within 

the meaniiig of the. EAJA, and therefore Green Air was not eligible for an award of 

attorney's fees. Thus, it is not necessary to reach the issue of whether the FAA was 

substantially justified in its prosecution of the case. The ALJ's denial of Green Air's 

application for fees is affirmed.* 

I. Facts 

Green Air is an on-demand aircraft charter company that holds an air carrier 

certificate imder 14 C.F.R. Part 135. It operated a charter flight fi-om Morristown, New 

Jersey, to Nassau, Bahamas, on December 30,2005. The aircraft's retum trip on 

January 2, 2006, was fi"om Nassau, Bahamas, to Wilmington, North Carolina, and fi'om 

there to Morristown, New Jersey, 

The FAA certificated the aircraft, a Challenger CL-600, to transport not more than 

nine passengers, and Green Air's operations specifications authorized use of the aircraft 

with not more than nine passengers. The aircraft had two pilot seats and a jump seat in 

addition to nine passenger seats. During the flights, the aircraft had on board 

Captain Daly, who was the pilot-in-conunand, Captain DeSantis, who was the second-incommand, nine passengers, and a person whose role and status were the subject of 

dispute- i.e., Erin Daly, the daughter of Captain Daly. The FAA asserted that Ms. Daly 

A copy of the ALJ's order denying fees and expenses is attached. 

Green requests that the Administrator order further proceedings if necessary for 

resolution of the case. (Applicant's Response to Order for Further Brieifing at 1.) The request is 

denied. No such further proceedings are necessary. 
was either an impermissible extra passenger or an unqualified flight attendant.' 

Green Air's quote for the charter flight included an "attendant" for $1,600. The 

trip log prepared by Green Air's customer service representative listed Ms. Daly as "FA." 

When Captain Daly transmitted a report to the U.S. Customs and Border Patrol the day 

before the flight, the report listed Ms. Daly as "crew." Finally, the customs inspector in 

the Bahamas reported that there were nine passengers and three crewmembers on board. 

II. FAA's Civil Penalty Action Against Green Air 

On February 6,2007, the FAA filed a complaint alleging the following: 

• On each flight. Green Air carried 10 passengers in violation of its 

operations specifications. 

• The load manifests, which indicated nine passengers rather than 10, failed 

accurately to describe the number of passengers and total weight of the 

loaded aircraft. 

• Green Air used the 10th passenger (Ms. Daly, Captain Daly's daughter) as 

a flight attendant even though Green Air did not have an approved flight 

attendant training program and Ms. Daly was not adequately trained. 

• As a result of carrying more than the authorized number of passengers, 

operating without the accurate total weight of the loaded aircraft, and 

using a flight attendant who was not appropriately trained. Green Air 

operated the aircraft in a careless or reckless manner so as to endanger the 

lives and property of others. 

• Green Air violated (1) 14 C.F.R, § 119.5(1) (no person may operate an 

aircraft imder Part 135 in violation of appropriate operations 

specifications); (2) 14 C.F.R. § 135.343 (no certificate holder may use a 

person as a crewmember unless that crewmember has completed the 

appropriate training); and (3) 14 C.F.R. § 91.13(a) (no person may operate 

an aircraft in a careless or reckless manner so as to endanger the life or 

property of another). 

• Under 49 U.S.C, § 46301(a)(5), Green Air, if a small business, is subject 

to a civil penalty of no more than $ 11,000 for each violation. 

' The applicable regulations do not require a trained flight attendant to be on board. 
• Under the facts and cu-cumstances of the ease, a civil penalty of$33,000is 

appropriate. 

In its answer to the complaint, dated February 9,2007, Green Air denied that: 

• it carried 10 passengers in violation of its operations specifications; 

• the load manifest was inaccurate; 

• it used Ms. Daly as a flight attendant; 

• it operated the aircraft in a careless or reckless manner; and 

• it is subject to a civil penalty. 

Green Air asserted the following defenses: 

• It was not required to establish or maintain an approved flight attendant 

training program under Part 135 because it operated aircraft with fewer 

than 19 seats. 

• Ms. Daly was not a flight attendant during the flights and therefore 

Part 135 did not require her to be trained. 

• Ms. Daly was a non-required crewmember (i. e., cabin aide, customer 

service representative). 

• The jimip seat occupied by Ms. Daly was placarded for "crew use only" -

as such, the jump seat was not a passenger seat. 

• Ms. Daly was an employee of Green Air and as such was authorized to 

occupy the jump seat under 14 C.F.R. § 135.85.^ 

• The load manifests for the flights accurately described the number of 

passengers and total weight of the loaded aircraft. 

On May 31, 2007, the FAA and Green Air agreed that, in exchange for the FAA 

^ Section 135.85 provides: 

The following persons may be carried aboard an aircraft without complying with 

the passenger-carrying requirements of this part: 

(a) A crevmiember or other employee of the certificate holder .... 
withdrawing its complaint. Green Air would submit an affidavit to the FAA stating that: 

Ms. Daly was an employee of the company, no company records of her employment 

presently existed, other than pay check stubs, and no IRS or state, tax records existed at 

the time concerning her employment. Green Air also agreed not to file an EAJA 

application, (ireen Air, however, did not submit the affidavit, and the case went forward. 

Green Air filed a motion styled, "Motion to Dismiss," on Jime 1,2007. Green Air 

argued in this motion that there were no genuine issues of material fact, and it attached 

affidavits and other evidentiary items. Thus, it,was actually a motion for decision under 

14C.F.R.§ 13.218(f)(5).'' 

Specifically, Green Air argued in the June 1,2007, "Motion to Dismiss" that 

Ms. Daly was a cabin aide employee of Green Air, not a passenger omitted from the 

manifest. Green Air attached as exhibits the following: 

• Two affidavits of Captain James Daly attesting that: (1) Ms. Daly was 

a cabin aide whose responsibilitieswere not safety-related but instead 

were to serve food and drink; and (2) Ms. Daly's weight was included 

in the load manifests. 

• An affidavit of Ms. Daly attesting that she was a non-required 

crewmember in a non-safety position, that her duties included serving 

food and drink, and that Green Air paid her. 

• Three check stubs, all to "Erin Daly," one dated December 7,2005, 

(almost a month before the flights), in the amount of $200.00, stating 

that it was for "2 days," another dated February 6,2006, in the amoimt 

of $2,450.00, stating that it was for "Wages,*'and the final one dated 

April 24,2006, in the amount of $3,150.00, stating that it was for 

* Section 13.218(f)(5) provides as follows: 

The administrative law judge shall grant a party's motion for decision if the . 

pleadings, depositions, answers to interrogatories, admissions, matters that the 

administrative law judge has officially noticed, or evidence introduced during the 

hearing show that there is no genuine issue of material fact and that the party 

making the motion is entitled to a decision as a matter of law. 
• 

"Flight Attendent (sic)." The payer was not indicated on any of the 

stubs, 

A memorandum from the U.S. Departaient of Homeland Security, 

Customs and Border Protection (CBP), indicating that, according to 

the Genesral Declaration filed by the pilots vdth CPB, there were three 

crew and nine passengers on tiie January 2,2006, flight. 

NTSB Safety Recommendation A-06-66 through -69 at 7 

(November 8,2006), stating that cabin aides were not required to 

receive safety training because they were not required crewmembers.' 

• A letter of interpretation dated March 19,: 1986, from John H. Cassady, 

Assistant Chief Counsel, Regulations and Enforcement Division, 

Office of the Chief Counsel, FAA, to James W. Johnson, Air Line 

Pilots Association (ALPA), stating that "persons other than 'flight 

crevwnembers' may be 'crewmembers' if they are assigned duty 

during flight time." 

The FAA filed a response to the "Motion to Dismiss" on June 16, 2007, asserting 

that material facts remained in dispute, including whether Ms. Daly was an employee, 

whether she served as a non-required crewmember. Whether she occupied the jump seat, 

and whether the load manifests included her weight. The FAA argued that if Ms. Daly 

were working on the flights, it might have been as a flight attendant vsdthout proper 

training. Further, the FAA asserted, there was nptiiing to show that she was not simply 

flying vdth her father to the Bahamas for New. Year's Eve, and the ALJ needed to make 

credibility determinations at a hearing. 

On Jtme 19,2007, Green Air filed another motion for summary disposition. This 

motion was entitled "Motion for Decision," and in it. Green Air asserted incorrectly that 

the FAA had failed to file a response to its "Motion to Dismiss." Green Air asked the 

ALJ to dismiss the FAA's complaint with prejudice due to the alleged failure to file a 

' The NTSB recommended, however, that "any cabin personnel on ... Part 135 flights 

who could be perceived by pa.ssengers as equivalent to qualified flight attendants receive basic 

FAA-approved safety training." Id. 
response. 

On June 28,2007, the ALJ denied both of Green Air's motions for summary 

disposition, ruling that the materials submitted by (jreen Air did not establish facts that 

would entitie Green Air to prevail. For example, the ALJ stated, the receipts showed that 

on three occasions, Ms. Daly was paid for something, but they did not demonstrate that 

she was a bona fide employee of Green Air, According to the ALJ, there remained a 

disputed issue of material fact - specifically, what was Ms, Daly'is exact status during the 

flights in question. The ALJ therefore scheduled a hearing and the parties pursued 

discovery. 

On August 3, 2007, Green Air requested reconsideration of the ALJ's denial of its 

June 1,2007, motion for summary disposition. Attached to Green Air's motion for 

reconsideration were the following exhibits: 

• An affidavit from Elaine Hxmt, Green Air's customer service 

representative, in which she averred that Ms. Daly was assigned the 

duties of a cabin or flight aide to serve food and drinks to the 

passengers and flight crew and that she was not an unmanifested 

passenger. 

• An affidavit from Captain Charles DeSantis, attesting that Ms. Daly 

was a cabin attendant serving food and. drink; 

• An estimate of flight charges for Green Air's customier, listing $1,600 

for an "attendant." 

• Green Air's flight schedule or "trip sheet," listing Ms. Daly as crew. 

• A CBP Electronic Advance Passenger Information System Report 

listing Ms. Daly as crew. 

• A copy of a 20Q5 IRS form 1099 listing Green Air as the payer and 

Ms. Daly as the recipient of "non-employee compensation" in the 

amount of $2,100. 

Green Air argued that the evidence showed that Ms. Daly was its contract employee and 
served as a cabin aide crewmember. 

In its FAA's reply to Green Air's reconsideration request, the FAA attached a 

newer affidavit from Ms. Hiint, stating thait her first declaration was incomplete and that 

Ms. Daly was expected to be trained to perform safety duties, not merely to serve food 

and drinks. The FAA argued that Ms. Daly's exact status remained an issue because on 

the IRS Form 1099 submitted by Green Air, the compensation for Ms. Daly was labeled 

"non-employee compensation." 

On August 21, 2007, the ALJ issued an order denying Green Air's Motion for 

Reconsideration, the ALJ noted that the FAA's affidavit of Ms. Hunt supported the 

FAA's position and that in this affidavit, Ms. Hunt repudiated.in part the earlier affidavit 

submitted by Green Air, The ALJ stated that it was "difficult to imagine a case less 

suitable for disposition by summary judgment." Order Denying Motion for 

Reconsideration at 1. He held that there remained disputed material issues of fact that 

precluded him from granting the relief Green Air sought. 

On September 18,2007, Green Air moved to preclude Ms. Hunt's testimony at 

the hearing. Attached to its motion was an e-mail dated August 24,.2007, from Ms. Htmt 

to one of the captains. Captain DeSantis, stating: 

I said I have no idea if she [Ms. Daly] is a FA, CA or a stripper for 

that matter. And I do't (sic) care as that has nothing to do with me. I 

don't hire, train or otherwise. 

I never said she is a [Part] 135 FA. I said as far as I am concerned 

she was on board to serve food and if there is an in flight issue she would 

assist. What did you think that she would just sit there and watch? 

... And just because I assume she was there for safety, maybe she 

was not. That was my take on it. But in the company I am no one. Not 

privy to training, paychecks, or othenvise, 

I'm not taking any blame for anything to do with this. I did not fly 

the flight, i (sic) did not assign crew nor did I pick the cabin attendant. 
Motipn to Preclude, Attachment 1 at 1. Green Air contended that, by her ovra admission, 

Ms. Hunt did not know Ms. Daly's status during the flights, and as a result, she would 

have no relevant or material testimony to offer at a hearing at which the central issue 

would concern Ms. Daly's status on the flights. 

Less than 2 weeks after Green Air filed this motion and about 2 weeks before the 

October 1, 2007, scheduled hearing date, the FAA withdrew the complaint. 

Subsequently, Green Air moved to dismiss, and the ALJ dismissed the case with 

prejudice under 14 C.F.R. § 13.215. 

III. Attorney's Fee Action 

Green Air filed an application imder the EAJA arguing that the FAA was not 

substantially justified in filing the complaint. Green Air contended that it should be 

awarded its attorney's fees and expenses, which were in excess of $27,400. 

On January 16,2008, the ALJ issued a decision denying the application for 

attomey's fees and expenses. The ALJ stated that the existence of questions of fact 

concerning Ms. Daly's role aboard the flights and her employment relationship to Green 

Air satisfied the EAJA's reqidrement that the agency action have a reasonable basis in 

law and fact. He further held that the legal inquiry and factual dispute were closely 

intertwined and satisfied the EAJA's requirement for a nexus between the two. 

Regarding the weight-and-balance computation, the ALJ said that it was imclear 

during the investigatory arid adjudicatory phases whether Ms. Daly's weight was 

included. There was no documentary evidence listing Ms. Daly as crew for purposes of 

the computation. 

The ALJ concluded that the factual disputes regarding Ms. Daly's role, training, 
and employment status, combined with the factual dispute regardmg computation of 

weight and balance, established that the FAA had substantial justification for its action. 

The ALJ rejected Green Air's argument that the dismissal compelled the conclusion that 

no substantial justification existed for the original complaint; he stated that the EAJA 

does not entitle an applicant to an award in any case where the agency drops its charges. 

The question remained whether the agency had substantial justification for going 

forward, and the ALJ found that it did. Green Air filed an appeal. 

After considering the briefs on appeal, the Administrator directed the parties to 

file additional briefs that addressed certain critical issues, including whether Green Air 

was a prevailing party in the underlying case. Green Aviation Management Co., LLC, 

FAA Order No. 2010-4 (June 14,2010). Both parties filed additional briefs. 

IV. Discussion 

The American rule is that parties must bear their own attomey's fees unless a 

statute or contract explicitiy authorizes fee-shifting. Hardt v. Reliance Standard Life Ins. 

Co.. 130 S.Ct. 2149,2156 (2010). "Numerous" federal stattxtes autiiorize the award of 

attomey's fees to the "prevailmg psaty." Buckhannon Board and Care Home. Inc. v. 

West Virginia Dept of Health and Human Services, 532 U.S. 598, 602 (2001). The EAJA 

is one such statute that authorizes the shifting of fees to the "prevailing party." See 

5 U.S.C. § 504 and 28 U.S.C. § 2412. The EAJA provides that prevailing parties in 

certain adversarial proceedings may recover attomey's fees from the United States. The 

relevant portion of the EAJA provides as follows: 

An agency that conducts an adversary adjudication shall award, to di prevailing 

party other than the United States, fees and other expenses incurred by that party 

in connection with that proceeding, unless the adjudicative officer of the agency 

finds that the position of the agency was substantially justified or that special 

10 
circumstances make an award unjust. 

5 U.S.C. § 504(a)(i) (emphasis added).'" Establishing "prevailing party" status is a 

threshold requirenaent for parties seeking fees. Henshy v. Eckerhgrt, 461 U.S. 424,433 

(1983). 

the leading case regarding "prevailing party" status under fee-shifting statutes is 

the U.S. Supreme Court's decision in Buckhannon. In this case, Buckhannon, the 

operator of assisted living facilities, sued the West Virginia Department of Health and 

Human Services ("West Virginia. HHS"), arguing that a new state requirement violated 

the Fair Housing Amendments Act ("FHAA") and the Americans vn\h Disabilities Act 

("ADA"). West Virginia eliminated the requirement, and the West Virginia HHS moved 

to dismiss the case as moot. The district court granted the motion. Buckhannon then 

sought attorney's fees from the West Virginia HHS under the FHAA and the ADA. Both 

statutes permit a court to grant attomey's fees to a "prevailing party." 

The Buckhannon majority held that the term "prevailing party" does not include 

"a party that has failed to secure a judgment on the merits or a court-ordered consent 

decree," even if the party has "achieved the desired result because the lawsuit brought 

about a voluntary change in the defendant's conduct." Id. at 600. The Court explained 

that to be a "prevailing party," there must be a judicially sanctioned material alteration of 

the legal relationship of the parties and the court, must have awarded some relief to the 

'° The FAA's regulations implementing the EAJA provide that: 

A prevailing applicant may receive an award for attorney fees and other 

expenses incurred in connection with a proceeding, or in a significant and 

discrete-substantive portion of the proceeding, unless the position of the agency 

over which the applicant has prevailed was substantially justified. 

14 C.F.R. § 14.04(a). Although Section 14.04(a) uses the term "prevailing applicant," rather than 

"prevailing party," the regulation should.be intierpreted to conform to the statute that it 

implements. 

11 
party seekmg fees. Id. at 604, 605, The Court noted that "[a] defendant's voluntary 

change in conduct, although perhaps accomplishing what the plaintiff sought to achieve 

by the lawsuit, lacks the necessary judicial imprimatur on the change," Id. at 605. 

According to the Court, a prevailing party includes: (1) one who has been 

awarded some enforceable judicial relief on the merits of his or her claim; and (2) one 

who has received relief through a settlement agreement enforced through a consent 

decree. In contrast, the Court stated, private settlements do not involve the judicial 

approval and oversight involved in consent decrees. Id. at 604, n.7. Private settlements, 

the Court explained, are often unenforceable unless the order of dismissal incorporates 

the settlement terms. Id. The Court rejected the '^catalyst theory," under which an award 

of fees would be permitted based upon a voluntary change in conduct by the defendant 

where there is no judicially sanctioned change in the parties' legal relationship. Id. at 

609. 

The Court in 5wc^a«/7on.stated that given the clear meaning of "prevailing 

party" in the fee-shifting statutes, it was not necessary to determine which way policy 

arguments cut. Id. For example, the Court declined to address policy arguinents like the 

following - if the Catalyst theory was not upheld, litigation could be protracted because 

parties would be less likely to move to dismiss if they believed they would have to pay 

attomey's fees for doing, so. The Court concluded by affirming the lower court's 

decision tiiat Buckhannon was not a prevailing party. 

The U.S, Court of Appeals for the District of Columbia Circuit has set fortii the 

followdng three-part test, based on Buckhannon. for deitermining whether a party, is a 

"prevailing party": 

12 
(1) there must be a court-ordered change in the legal relationship of the parties; 

(2) the judgment must be in favor of the party seeking fees; and 

(3) judicial relief must accompany the judicial pronouncement. 

Turner v. NTSB. 608 F.3d 12,15 (citing District of Columbia v. Strauss, 590 F.3d 898, 

901 (D,C. Cir, 2010), m^ Thomas v. National Science Foundation, 330 F.3d 486,493 

(D.C. Cir. 2003)). 

The Supreme Court in Buckhannon explained that "prevailing party" is a term of 

art, and that the Court interprets consistently the numerous federal fee-shifting statutes 

that use that terminology. Buckhannon, 532 U.S, at 602, 603, n,4. Following the 

Supreme Court's lead, the Federal circuit courts have applied the Buckhannon prevailingparty criteria to other fee-shifting statutes that use the term "prevailing party," including 

the stattite at issue in this case, tiie EAJA - 5 U.S'.C. § 504 and 28 U.S.C. § 2412." 

Several circuit courts have held that the types of relief cited by the Supreme Court 

in Buckhannon — /.e., judgments on the merits and consent decrees - are only examples of 

the types of orders that would confer prevailing party status, assuming that sufficient 

judicial imprimatur exists. See. e.g.. Walker v. Calumet City, 565 F.3d 1031,1034 

(7* Cir. 2009); Citizens for Better Forestry v. U.S. Dep't of Agriculture, 567 F.3d 1128, 

1132 (9*^01^2009). 

In the instant case, the FAA moved for a voluntary dismissal of its complaint. 

The ALJ dismissed the case with prejudice, as he was required to do by the FAA's rules 

" A case applying Buckhannon to 5 U.S.C. § 504 is Turner v. NTSB, 608 F.3d 12 (D.C. 

Cir. 2010). Cases applying Buckhannon to 28 U.S.C. § 2412 include: Ma v. Chertqff, 547 F.3d 

342 (2'"* Cir. 2008); Biodiversity Conservation Alliance v. Stem, 519 F.3d 1226 (10* Cir. 2008); 

Carbonellv. Immigration and Naturalization Service, 429 F.3d 894 (9* Cir. 2005); and Thomas 

V. National Science Foundation, 330 F.3d 486 (D.C. Cir. 2003). 

13 
of practice - specifically, 14 C.F.R. § 13.215. Section 13.215 provides as follows: 

§ 13.215 Withdrawal of complaint or request for hearing 

At any time before or during a hearing, an agency attorney may withdraw 

a complaint or a party may withdraw a request for a hearing without the 

consent of the administrative law judge. If an agency attorney withdraws 

the complaint or a party withdraws the request for a hearing and the 

answer, the administi-ative law judge shall dismiss the proceedings under 

this subpart with prejudice. 

(Emphasis added.) 

The ALJ's dismissal of the FAA's case M^ith prejudice here met some of 

Buckhannon*s "prevailing party" criteria. The Supreme Court in Buckhannon indicated 

that obtaining a favorable decision on the merits could confer "prevailing party" status. 

Some lower courts have held that a dismissal with prejudice, as in the instant case, is a 

decision on the merits because it precludes further litigation - in other words, because 

res judicata would apply. See. e.g., Michigan Surgery Iny.. LLC v. Arman, 627 F,3d 572, 

576 (6* Cir. 2010) ("[b]ecause a dismissal with prejudice precludes fiorther litigation," it 

effectively rejects the plaintiffs claim on the merits).'^ The ALJ's order of dismissal 

v^dth prejudice effected a material alteration of Green Air's legal relationship with the 

FAA because if the FAA tried to bring the same claim in the fiiture. Green Air coiild rely 

successfiilly on a res judicata defense. Further, enforceability is required for "prevailing 

party" status. In Biodiversity Conservation Alliance v. Stem, 519 F.3d 1226, 1230 (lO"' 

Cir. 2008), former Supreme Court Justice Sandra Day O'Connor vwote that "under 

Buckhannon, a. court order must be enforceable to qualify that party for attomey's fees as 

In contrast, a dismissal without prejudice is not an adjudication on the merits, "as it 

leaves the parties in the same legal position as if no suit had ever been filed." Cruz v. Louisiana 

ex rel. Dept. of Public Safety and Corrections. 528 F.3d 375, 379 n. 15 (5"" Cir. 2008) (quoting 

Hilbm V. Goldberg, 823 F.2d 881, 883 (5* Cir. 1987)). 

14 
a prevailing party." Here, the ALJ's dismissal with prejudice was enforceable by the 

courts under the doctrine of rejyW/cato. 

On the other hand, Green Air did not meet key criteria to be a "prevailing party." 

The Buckhannon Court explained that to be a "prevailing party," there must be a 

judicially sanctioned aWevaXion of the legal relationship of the parties and the court must 

have awarded some relief to the party seeking fees. Buckhannon, 532 U.S. at 604,605 

(emphasis added). The Buckhannon court stated that judicial imprimatur is necessary. 

Id, at 605. 

Here, while the agency attorney's voluntary decision to discontinue the civil 

penalty action gave Green Air what it wanted, the ALJ's order dismissing the case lacked 

the necessary judicial imprimatur, because under Section 13.215, the ALJ had entirely no 

choice or discretion but to dismiss the case with prejudice. See, e.g.. Highway Equipment 

Co. V. FECO. Ltdy 469 F.3d 1027,1034 (Fed. Cir. 2006), where tiie court emphasized that 

it was the judge's exercise of discretion that gave the dismissal with prejudice the 

necessary "judicial imprimatur" so that the order constituted a "judicially sanctioned 

change in the legal relationship of the parties" xmdev Buckhannon. 

In Turner, the court held that the NTSB ALJ's order dismissing the case was 

without prejudice and did not provide administrative relief. The court explained that the 

ALJ's.order dismissing the case was simply an "administrative housekeeping measure" 

not conferring "prevailing party" status, because the FAA did not need the ALJ's 

permission to withdraw its complaint under the rule. Turner, 60S F.3d at 16. 

Although Turner involved a dismissal without prejudice. Turner is instructive in 

this case because in both Turner and in this case, the FAA did not need the ALJ's 

15 
permission to withdraw the complaint under the applicable procedural rules. The ALJ's 

dismissal of the case against Green Air with prejudice did not reflect any substantive 

judicial imprimatur because Section IZ.llSrequiredXhe ALJ to dismiss the case with 

prejudice once the FAA withdrew its complaint. See. e.g.. Hutchinson ex rel. Julien v. 

Patrick, — F.3d —, 2011 WL 540538, at *4 (l"Cir. 2011) (findingit necessary to 

determine whether the order contained the sort of judicial involvement and actions 

inherent in a court-ordered consent decree); Bell v. Board of County Com'rs of Jefferson 

County, 451 F.3d 1097,1101 (10* Ciir. 2006) (finding tiiat because plaintiff entered into a 

private settlement without any judicial involvement, he was not a prevailing party); Lum 

V. Mercedes Bern, 246 FRD 544, 547 (N.D. Ohio 2007) (explaining tiiat tiie focus after 

Buckhannon was on "the nature and Judicial involvement in the outcome, rather than on 

the practical effects ...."; explaining that because the judge did not "determine or 

oversee" the dismissal, the defendant was not a "prevailing party") (emphasis added). 

V. Conclusion 

Green Air was not a "prevailing party" under the Supreme Court's key decision in 

Buckhannon because the FAA's voluntary change in conduct lacked the necessary 

judicial imprimatur. As a result, a fee award is not appropriate under 5 U.S.C. 

§ 504(a)(1). For the reasons stated above, this decision denies Green Air's appeal." 

J. RANDOLPH BABBITT 

ADMINISTRATOR 

Federal Aviation Administration 

Within 30 days of this determination. Green may file an appeal with an appropriate 

United States Court of Appeals. 5 U.S;C. § 504(c)(2); 14 C.F.R. § 14.29. See 49 U.S.C. § 46110 

and 14 C.F.R. §§ 13.235(a)-(c). 

16 
CERTIFICATE OF SERVICE 

I hereby certify that I have this date, July 13,2011, mailed one copy of the 

foregoing Petition for Review addressed to: 

Attention: Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Room 924A 

Washington, D.C. 20591 

Christian Lewerenz, Esq. 

Office of Assistant Chief Counsel 

FAA Eastern Region, AEA-7 

1 Aviation Plaza, Room 561 

Jamaica, NY 11434 

Tel: 718-553-3258 

Fax: 718-995-5699 

GREQORY/S. WINK>N, Esquire 

One/ 

Sujfc450 

Rockville, MD 20850 

(301) 294-8550