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SERVED OCTOBER 22, 2010 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

APPLICATION OF i-^ 

RECURRENT TRAINING CENTER, INC. -3 i ji^i ^ 

For fees and expenses under the ^ CJ'Sm 

Equal Access to Justice Act ^ >j^ ^ 

FAA DOCKET NO. (CPlOGLOOl 0) <~o 

(Civil Penalty Action) ' ^ 

FDMS NO. (FAA-2010-0973) 

oo 

APPLICANT'S REPLY BRIEF 

COMES NOW Respondent, RECURRENT TRAINING CENTER, INC., by and through 

its counsel, BARNETT LAW OFFICES, P.C, pursuant to 14 C.F.R. §14 and hereby files its 

REPLY BRIEF in the instant matter and states as follows: 

I. HISTORY OF THE MATTER 

1. On September 21,2009, Applicant, Recurrent Training Centers, Inc. ("RTC") was 

advised through a Final Notice of Proposed Civil Penalty that the FAA proposed to 

assess a civil penalty in the amount of $3,850. 

2. On October 5,2009, the FAA received RTC's timely vmtten request for a hearing. 

3. RTC holds and at all times mentioned herein held an Air Agency Certificate Number 

R9KS949K for an approved Provisional Pilot School with a Special Preparaiion 

Courses rating issued by ihc FAA. 
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4. RTC also holds and al all times mentioned herein held Training Center Certificate 

Number R9KX049K with Training Specifications to conduct training courses with 

respcctto 14 C.F.R. 142. 

5. On or about January 16, 2008, RTC certified that Mr. VanBerkom successfully 

completed an Instrument Proficiency Check ("IPC") and on December 17, 2007, RTC 

certified that Mr. Moore successfully completed an Instrument Proficiency Check, 

These IPCs were performed in a Flight Training Device ("FTD"), Level 1, 3, or 6. 

6. Circling Approaches and Landing from a Straight-in or Circling Approach maneuvers 

cannot be performed with a Flight Training Device ("FTD") Level 1, 3 or 6. 

7. FTD Level 1, 3 and 6 arc the FTDs approved for RTC. 

8. The IPC's given to both pilots did not lesl for Landing from a Straight-in or Circling 

Approach maneuvers . 

9. The Complainant asserted that an IPC must test for all the Instrument Rating Practical 

Test Standards ("PTS"). The PTS includes Landing from a Straight-in and Clircling 

Approach maneuvers. 

10. The Agency argued Ihal RTC committed three violations for the FAR's: 

a. §14L41(b)(3), 

b. §141.83(a)(1) and 

c. §61.57(d) 

11. RTC argued that the language of 61.57(d) is clear and unambiguous on its face and 

that an IPC need only include "a representative number of tasks". 

12. 'iTie Court found that there were no genuine issues of material fact and that the matter 

could be decided on questions of law (Attached as Exhibit A to Application, 

Decision, I. Para. 7). 

13. The Court stated in its decision that all allegations hinged upon an evaluation of the 

language of 14 C.F.R. §61.57(d). (Attached as Exhibit A to Application, Decision, III. 

Para. 2) 

14. The Court fiirther stated in its decision that the proper reading of 14 C.F.R. §61 -57(d) 

requires accomplishment of a "representative number" of PTS tasks - not all of them, 

and not necessarily the ones named in the PTS chart. (Attached as Exhibit A to 

Applicafion, Decision, FIT. Para. 4) 

15. Ihe Agency's position would effectively delete the words "representative number" 

and the manifest intent of the regulation would thus be thwarted. (Attached as Exhibit 

A to Application, Decision, 111 Para. 4) 
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16. The Court further stated that the Agency relied on statements from the PIS v/hich do 

not have the force of law. Because the PTS lacks legal effect, it may not impose 

duties not compelled by the plain words of 14 C.F.R. §61.57(d). (Attached as Exhibit 

A to Application, Decision, III. Para. 6) 

17. Moreover, (he Court stated, 14 C.F.R. §61.57(d) requires no explaining or 

supplementation by reference to extrinsic documents. As such, the arguments of the 

Agency are beside the point (Attached as Exhibit A to Application, Decision, TIL 

Para. 7) 

18. Lastly, the Court decided that the allegations of the Complaint were not proven and 

the Compliant is "hereby dismissed". (Attached as Exhibit A to Application, 

Decision, III Para. 8) 

I. ARGUMENT 

1. Substantial Justification 

The underlying evidence available to the Agency in this matter is none other than the 

Federal Aviation Regulations themselves. Simply put, the Agency attempted to create a 

violation where none existed. The Court found that the Agency's interpretation in this case 

would have effectively deleted the words "representative number" of tasks. Further, this 

interpretation was not consistent with the Agency's own interpretations and publicjrtions. In 

fact, the practice of conducting IPC's in an FTD by performing a representative number of 

TASKLs at the discretion of the examiner was a wide spread practice in the industry as 

evidenced by previously produced exhibits (see, for example. Respondent's Exhibit R-1) 

Further, RTC has conducted IPC's in its FTD's for some twenty years with the full 

knowledge and consent of the FAA prior to the present enforcement action. Tliis matter 

arose because the Agency's interpretation of its own regulation in this particular matter is 

arbitiary, capricious and otherwise not according to law. In other words, the Agency was not 

substantially justified in its interpretation because the Agency already knew or should have 
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known that this latest interpretation was not consistent with any of its prior application of the 

regulation. 

The Agency argues its position was substantially justified in this matter, however, the 

Court stated (hat the "operative language" of 14 CFR §61.57(d) is clear and unambiguous 

and goes on to use the New American Heritage Dictionary of the English Language to define 

the word "representative". It would appear, then, that the Agency's position would be 

substantially justified only if it did not have access to a dictionary. 

In the Agency's reply, it states that the Agency's interpretation of 14 CFR §61.57(d) 

requires "specific, representative tasks" in order to accomplish an instrument proficiency 

check. The Agency has unilaterally added the word "specific" to the interpretation of a 

regulation that contains no such word. "Specific" has a meaning completely contrary to 

"representative" and is not a reasonable interpretation which could be vised for substantial 

jmtification of an enforcement action which has continued since October 16, 2008. 

In its response, the Agency quotes language from the PTS which the Court has confirmed 

does not have the force of law. The Agency quotes the italic bold wording, "Adherence to 

the provisions of the regulations and the practical text standards is mandatory for the 

evaluation of instrument pilot applicants (underline added). Pilots who require an 

instrument proficiency check are rrot instrument pilot applicants: they already hold an 

instrument pilot certificate and are merely seeking to comply with §61.57(d) in order to 

maintain their proficiency. Again, it is not a reasonable position to place a requirement on a 

pilot where one simply does not exist. 
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2. Award 

The award sought by the Applicant is reasonable pursuant to 14 CFR § 14.05' as 

previously set forth in RTC's application. Specifically, the Court may consider, inter alia, 

the attorney's customary fee for similar services, the prevailing rate used by other attorneys 

in the community and the time reasonably spent in light of the difficulty or complexity of the 

issues in the proceeding. RTC's application clearly demonstrated that the attorney's fee was, 

in fact, (he customary fee charged and supplied two affidavits from local attorneys 

demonstrating that rate was at or below the rates charged by those attorneys for similar 

.services. Further, considering the time spent in light of the fact that this matter stems from a 

1 § 14.03 Allowance fees and expenses. 

(a) Awards will be based on rates customarily charged by persons engaged in tiie business of acting as attorneys, 

agents, and expert witnesses, even if the services were made available without charge or at a reduced rate to the 

applicant. 

(b) No award for the fee of an attorney or agent under this part may exceed $125 per hour, or such rate as prescribed 

by 5 U.S.C. 504. No award to compensate an expert witnees may exceed the highest rate at which the agency pays 

expert witnesses. However, an av^rd may also include the reasonable expenses of the attorney, agent, or witness as 

a separate item, if the attorney, agent, or witness ordinarily charges dients separately for such expenses. 

(c) In determining the reasonableness of the fee sought for an attorney, agent, or expert witness, the A U or 

adjudicative officer shall consider the following: 

(1) If the attorney, agent, or witness is in private practice, his or her customary fee for similar services, or if an 

employee of the applicant, the fully allocated cost of the services; 

(2) The prevailing rate for similar services in the community in which the attorney, agent, or witness ordinarily 

performs services; 

(3) The time actually spent in the representation of the applicant; 

(4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and 

(5) Such other factors as may t>ear on the value of the sen/ices provided. 

(d) The reasonable cost of any study, analysis, engineering report, test, project, or similar matter prepared on behalf 

of a party may be awarded, to the extent that the charge for the sen/ice does not exceed the prevailing rate for similar 

services, and the study or other matter was necessary for preparation of the applicant's case-

(e) Fees nnay be awarded only for work performed after the issuance of a complaint, or in ttie Default Adjudicative 

Process for a protest or contract dispute under part 17 of this chapter and the AMS. 
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Final Notice of Proposed Certificate Action that was served over one year ago, the attorney's 

fees are not unreasonable by any standard. 

The fees charged by Mr. John Killeen were based on the rales of paralegals in the area, 

not lor work as an attorney. Mr. Killeen is not an attorney, nor does he portend to be an 

attorney or offer legal advice. Contrary to the Agency's response brief, Mr. Killeen is not an 

alter ego of RTC nor was he conducting dipro se defense. RTC employs numerous people 

ranging from instructors to administrative staff. Mr. Killeen's familiarity with the operation 

and (he regulations governing that operation was a valuable resource that saved numerous 

hours of research on the part of RTC's counsel. 

Contrary to the Agency's response, Mr. Killeen's time was spent outside the scope of his 

corporate employment with RTC. In addition to his responsibilities as the president of RTC, 

Mr. Killeen sacrificed his available free time to assist RTC's counsel in defending the 

Agency's unreeisonable and unjustifiable enforcement action. While the Agency would have 

this court believe that Mr. Killeen spent an excessive amount of time working on this matter, 

it should be noted that this complaint was served upon RTC in October of 2009 and 

consumed nearly a fiall year of RTC's time and resources. If the 79 hours that was billed by 

Mr. ICilleen is divided over the approximately 44 weeks that was consumed during the appeal 

process, Mr. Killeen's contribution of approximately 1.8 hours per week on average appears 

to be a reasonable, if not a conservative expenditure of time. Mr. Killeen's work ser^^ed an 

important function as he provided vital information to RTC's counsel that would have been 

otherwise necessary to research at counsel's higher hourly rate. Clearly, the hours of work 

performed by Mr. Killeen saved at least as many hours of time that could have been put forth 

by RTC's counsel. The net result being a much lower award sought through RTC's EAJA 
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application. 

IL CONCLUSION 

The Agency has never been in the possession of, or presented, reasonable evidence and 

arguments that its interpretation of 14 CFR §61.57(d) which required a pilot to perform .all 

TASKS contained in the Instrument Rating Practicid Test Standards. (The Agency incorrectiy 

tiUes this FAA document the Instrument Proficiency Test Standards in the conclusion of its 

response; no such document exists because there are no such standards). The fact that Judge 

Goodwin found that the FAA's interpretation of the regulation would thwart the manifest intent 

of the regulation is an interpretation that cannot be substantially justified under any 

circumstance. If the FAA is allowed to arbitrarily interpret each regulation as it plea.ses, there 

soon would be no standard to which users of the aerospace system could rely and the resultant 

breakdown in safety could be catastrophic. Accordingly, the Agency's interpretation is not 

substantially j ustified. 

in addition, the fees and costs included in the iastant application are reasonable based upon 

14 CFR § 14.05. The costs associated with Mr. Killeen resulted in a more efficient method of 

preparation to defend the enforcement action and subsequently a significantiy lower awjurd was 

requested. Based upon the foregoing, the fees and costs requested arc appropriate and reasonable 

and should be awarded the Applicant. 

WHEREFORE, Respondent asks this Court to grant the pending Application for fees 

and expenses under the Equal Access to Justice Act. 

Dated: October 22, 2010 
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Charles R. Barnett, Ul 

BARNETT LAW OFFICES, P.C. 

1664 Moorland Lane 

Crystal Lake, Illinois 60014-2985 

(815)356-8647 

(815) 356-7042 (FAX) 

Respectfully submitted, 

"Attorney for Applicant 

Recurrent Training Center, Inc. 
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CERTIFICATE OF SERVICE 

The undersigned certifies that the foregoing Reply Brief was served via US Regular Mail 

as follows: 

ORIGINAL AND ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, SW. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-*30 

Wilbur Wright Building- Suite 2W1000 

FAX: 202-493-5142 

ONE COPY 

Briana Martino, Complainant's Counsel 

Great Lakes Region, AGL-7M 

Federal Aviation Administration 

2300 Last Devon Avenue 

Des Plaines, IL 60018-4696 

T12L: 847-294-7713 

FAX; 847-294-7498 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

Room 812-320 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536 

>iid Dated this 22"° day of October, 2010 

Charles J 

Attorney for Respondent