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PAGE 01/07 

FEDERAL AVIATION ADMINISTRATION 

Alaskan Region 

Office of the Regional Counsel 

222 West Seventh Avenue, Box 14 

Anchorage, Alaska 99513 

PH: (907) 271-5269 FAX: (907) 271-2800 

FACSIMILE TRANSMISSION COVER SHEET 

TO: Judge Richard C Goodwin 

Docket Clerk 

FROM: Craig Wm. Black, Esq. 

FAX No: (202)366-7536 

(202) 493-5020 

RE: Smith Cable Systems, Inc. 

FAA Docket No. CP09AL0012 

DMS No. rAA-2009-0976 

Number of pages (not including this cover sheet): - 6 -

Administrator^ Opposition To Smith Cable's Application For Attorney's Fees And Expenses 

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imTiodiMt.y wnify ihe jfnrter to lolochone. »rij nuifn Ihe nrigiml mt»uiBe lo u, n, die iibi?«.ndilrei' "In the U S. ^O^M Serpen 
09/07/2011 10:23 9072712B80 FAA PAGE 02/07 

OERARTMENTOF 

;:;AN3PQnTAT10M 

UNITED STATES DEPARTMENT OF TRANS PORT AT1GIS:T [JPERATIONS 

OFFICE OF HEARINGS 

WASHINGTON. D.C. 7rii! ^[P 12 A lOM 

IN THE MATTER OF 

SMITH CABLE SYSTEMS, INC. 

FAA DOCKET NO. CP09AL0012 

(Civil Penalty Action) 

DMS NO. FAA-2009-0976 

AD\nisnSTRATOR^S OPPOSITION TO SMITH CABLETS APPLICATION FOR 

ATTORNEYVS FEES AND EXPENSES 

Complainant Federal Aviation Administration ("Administrator"), through counsel, 

hereby opposes the Application for the Award of Attorneys Fees and Expenses Under the Equal 

Access to Justice Act of 19S0 ("Application") filed by respondent Smith Cable System. Inc. 

("Smith Cable"), The application should be denied. 

Smith Cable has applied for attorneys fees and e;tpenses under the Equal Access to 

Justice Act ("EAJA").' As Smith Cable accurately relates^, parties who succeed in certain 

proceedings before ihe National Transportation Safety Board ("NTSB") may recover certain 

attorneys fees and expenses via EAJA and its implementing regulations.'^ 

However, what Smith Cable apparently faiJs to appreciate is that this proceeding did not 

take place before the NTSB. The NTSB is an independent federal agency^ responsible for civil 

' 5. U.S.C. § 504; Application ai4. 

' 14C.F.R. Part 14. 

•* 49 U.S.C. 5 lUl(a). 
09/07/2011 10:23 9072J71280B FAA PAGE 03/37 

transponation accident investigation.^ This, of course, is not a transportation occidem case and 

was not heard by the NTSB- Rail^er, it is a hazardous materials case coticerning a civil penalty 

proposed by the Administrator of the Federal Aviation Administration imder 14 C-F.K. 13. IC^. U 

was conducted under die Rules of practice in FAA Civil Penally Actions^ and heard by an 

Administrative U w Judge ("AU") within the Department of Transportation's Office of 

Hearings.' Although Smith Cable's Application and numerous prior filings all bear a caption 

appropriate for a NTSB matter, this is not a NTSB case. 

While EAJA costs and fees are certainly permitted in matters heard by the NTSB , theyare not allowed in hazardous matenah cases heard in this Department of Transportation forum. 

Tn Dominion ConceDts^ the Administrator held that when the Administrator brings a hazardous 

materials case against a shipper under 49 U.S.C §§ 5101-5128 and based the proposed penalty 

on 49 U.S.C. § 5123 alone, the hearing is not an adversary adjudication decided after a hearing 

on the record subject to section 554 of the Administrative Procedures Act for which EAJA 

costs and fees may be awarded. As bluntly expressed by the Administrator. ''[t]he EA.JA does 

not apply to hazardous materials cases."'^ tn the face of Dominion Concepts, what Smith 

Cable requests is imprecedented: undersigned counsel has searched its database of hazardous 

materials cases heard by the Office of Hearings and cannot find a single one where costs or 

^49 U.S.C. § 1131. 

" 14C.F.R. § USubpanG. 

^5 U.S.C. §3105. 

^ Applicatlonjof Empire Airways for Fees and Expenses Under the Equal Access to Justice Act. 

FAA Docket No. CP10EAOOO8, 2010 WL 5066080 (Dec. 9, 2010). 

^ FAA Order No. 2005-4 (Mar. 8. 2005) 

"^ 5 U.S.C. §554. 

'' Dominion Concepts ar *3 (emphasi.s added). 

SmithCable Systems, hic, DMS No. FAA-2009-0976 

Administrator\\ Opposition to Smith Cable's Faga 2 

Application for Attorney*.": Fees and Expenses 
09/07/2011 10:23 9072712800 FAA PAGE 04/07 

attorneys fees were granted to a prevailing respondent, tinder EAJA or otherwise. EAJA costs 

and fees are simply not available in circumstances such as these. 

Moreover, even if EAJA did apply, it would not require an award of costs and fees in this 

case because the Administrator's prosecution of this case was substantially justified. EAJA 

requires an agency conducting an "adversary adjudication"* to award fees and other expenses to a 

prevailing party unless the position of the Admini.strator was "subsianlially justified" or special 

circumstanceji make an award unjust.'^ The Administrator bears the burden of demonstrating that 

the case was substantially justified.'" 

Although Smith Cable prevailed when, following the hearing, the A U dismissed the 

Administrator's complaint, and although no special circumstances would make an award of costs 

and fees to Smith Cable unjust, such an award could not be made in this matter because the 

Administrator's position was substantially justified. 

An action is substantially justified when it has a reasonable basis for proceeding. 

It must be justified to a degree that would satisfy a reasonable person. The 

standard is met if there is a "genuine dispute," or if reasonable people coiUd differ 

as to the appropriateness of the contested action. 

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

entire proceeding. It is decided "on the basis of die administrative record, as a 

whole, which is made in the adversary adjudication ..." "Substantial justification" 

comiotes an active, searching inquiry into the quality of evidence advanced and 

the overall reasonableness of the agency's position. 

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

Justification. U must not be assumed that the government's position was not 

substantially justified simply because it lost on the merits. Nor must the 

agency demonstrate that it had a substantial likelihood of prevailing to prove 

that its litigation position was substantially Justified."'* 

'^5 U.S.C. § 504(a)(1). 

'"* 14C.F.R. § 1.4.04(a). 

14 Application of Recurrent Training Center, Inc.. FAA Docket No. CPIOGLOOIO, 20J1 WL 

30280 at *l-2 (Jan. 3, 2011) (citations omitted) (emphasis added). 

Smith CakljL^ystems, Tnc. DMS No. FAA-2009-0976 

Administrator's Opposition to Smith Cable's Pave 3 

Appliccitiorj for Attorney's Fees and Expenses 
Piq/PI7/2P11 1 in:?: ^ qpl79712flpIR FAA PAGF P1R/P17 

In this matter, the FAA's position was -substamially justified" within the meaning of the 

di.scu.ssion above. The AU ultimately dismissed the complaint because, following hearing, the 

AU found that the Administrator failed to show by a preponderance of the evidence that Smith 

Cable shipped the hazardous materials as alleged.'' Although the A U found that Smith Cable 

offered a shtpmem to Alaska Airlines and that Alaska Airlines ramp agents that day found 

hazardous materials within a shipment connected by documents to Smith Cable, the A U 

ultimately found the evidence insufficient to conclude that Smith Cable actually offered the 

hazardous materials that the agents discovered.'^ This is not a case where the A U determined 

that the respondent did not ship anything, or that the materials in question were not hazardous 

and subject to regulation. Rather, the A U weighed the evidence and the testimony and 

determined that, on balance, the Administrator failed to carry the burden of proof. In fact, before 

addressing die-problems with the Administrator's position, the A U wrote it was "understandable 

that, based at least in part on those materials. Complainant would open and proceed with an 

enforcement action.'*'' Furthermore, while Smith Cable's application suggests that the 

Administrator always lacked sufficient grounds to proceed with this case, it should be noted that 

Smith Cable chose not to mitigate its costs and fees by moving to dismiss before the hearing. The 

Administrator's po.sition, while ultimately unsuccessful, was substantially justified. 

Finally. Smith Cable has asked that its attorneys fees be calculated at a rate of $200 per 

hour. However, attorney's fees awarded under EAJA cannot exceed S125 per hour. Therefore, 

'• Initial Decision at 6. 

'*Jdal6-8 . 

17 Id at 6. 

Smith Cable Systems. Inc. 

Admimstrator's Opposition to Smith Cable's 

Application for Attorney's Fees and Expenses 

DMSNn FAA-2009-0976 

Page 4 
09/87/2011 10:23 9872712880 FAA PAGE 06/07 

even if fees were available in this ha^.ardous materials case, they would have to be cut 

substantially from die amoimt Smith Cable requests. 

. For the foregoing reasons, the A U should deny Smith Cable's application. 

DATED iJiis y day of September. 2011. 

HOWARD L- MARTIN, JR. 

Regional Coun?;el 

Wm, Blaa 

Attorney 

CERTIFICATE OF SERVICE 

Re; Smith Cable Systems, Inc. 

FAA Docket No. CP09AL0012 

DMS No. FAA-2009-0976 

I HEREBY CERTIFY that on this date I have served a copy of the foregoing by postage-prepaid, 

certified mail, return receipt requested, facsimile, and email to: 

The Honorable Richard C Goodwin 

Administrative Law Judge 

Office of Hearings. M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

-Fax:(202)366-7536 

Email: Richard.Goodwin@dot.gov 

I HEREBY FURTHER CERTIFY that on this date I have served the original and two copies of 

the foregoing by post age-pre pa id, certified mail, return receipt requested and facsimile to: 

Federal Aviation Administration 

ATTN: Docket Clerk, AGC-430 

Wilbur Wrighi Building - Suite 2W10O0 

800 Independence Avenue, SW 

Washington. DC 20591 

Smith. Ccihle Systems, fnc. DMS No, FAA-2009'0976 

Administrator's Opposition to Smith Cable's pa^e 5 

Application for Attorney's Fees and Expenses 
09/07/2011 18:23 9072712800 PAA 

^^^ PAGE 07/07 

FAX: (202) 493-5020 

r HEREBY FURTHER CERTIFY that on this date TtTav5Tervcd-cupi£:s of the foregoing by 

postage-prepaid fust-class mail to: 

Brent R. Cole 

Marston & Cole, P.C 

821 N Street. Suite 208 

Anchorage. AK 99501 

Fax: (907) 277-8002 

DATED: ^^ . ^ SO1 1 

Federal Aviation Administration 

Office of Regional Counsel 

222 West 7lh Avenue, Box 14, AAL-7 

Anchorage, AK 99513-7587 

Smith Cable, S\^tems, fnc. QMS No. FAA -2009-0976 

Administrator's Opposition to Smith Cable's Page 6 

Application for Attorney's Fees and Expenses