Served October 8,2010 

U.S. DEPARTMENT OF TRANSPORTION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

RECURRENT TRAINING CENTER, INC. 

FAA DOCKET NO. CP009GL0008 

(Civil Penalty Action) 

DMS No. FAA-2009-0971 

.rmRTMENTOF 

•••"T OPERATIONS 

•• ::n 8 p i:3b 

AGENCY'S RESPONSE TO APPLICATION FOR AN AWARD OF 

ATTORNEY'S FEES AND OTHER EXPENSES PURSUANT TO 

THE EQUAL ACCESS TO JUSTICE ACT (EAJA) 

INTRODUCTION 

Pursuant to 14 C.F.R. § 14.22, the Complainant, the FEDERAL AVIATION 

ADMINISTRATION ("FAA" or "Agency"), hereby files its Response to Applicant's Application 

for an Award of Attorney Fees and Other Expenses Purusant to the Equal Access to Justice Act 

(EAJA) served September 10,2010. 

On September 21, 2009, a Final Notice of Proposed Civil Penalty was issued alleging the 

following: 

1. Recurrent Training Centers, Inc.(hereinafter RTC) holds and at all times 

mentioned herein held an air Agency Certificate Number R9KS949K for an 

approved Provisional Pilot School with a Special Preparation Courses rating 

issued by the Federal Aviation Administration. 

2. RTC also holds and at all times mentioned herein held Training Center Certificate 

Number R9KX049K with Training Specifications to conduct training courses 

with respect to 14 C.F.R. 142. 

3. On or about January 16, 2008, RTC certified that Mr. VanBerkom successfiolly 

completed an Instrument Proficiency Check and on December 17, 2007, RTC 
certified that Mr. Moore successfully completed an Instrument Proficiency Check. 

RTC was not equipped or authorized under RTC's Air Agency Certifications to 

perform these Instrument Proficiency Checks using Flight Training Devices 

(FTDs). 

4. In order to perform Instrument Proficiency Checks all mandatory TASKs (TASKs 

are titles of knowledge areas, flight procedures, or maneuvers appropriate to an 

AREA OF OPERATION) must be tested including Circling Approaches and 

Landing fi-om a Straight-in or Circling Approach as required in the practical test 

standards. These two TASKs cannot be performed with a FTD Level 1,3 or 6. 

Level 1, 3 and 6 are the FTDs approved for RTC. 

In the Final Notice of Proposed Civil Penalty, the Agency found three regulatory violations: 

a. 14 C.F.R. Section 141.41(b)(3): Each flight training device used to obtain flight 

training credit allowed for flight training devices in an approved pilot training course 

curriculum must (3) have been evaluated, qualified, and approved by the Agency. 

b. 14 C.F.R. Section 141.83(a)(1): Each pilot school or provisional pilot school must 

meet the following requirements (1) comply with its approved training course. 

c. 14 C.F.R. Section 61.57(d): Instrument proficiency check. A person who does not 

meet the instrument experience requirements of paragraph (c) of this section within 

the prescribed time or within 6 calendar months after the prescribed time, may not 

serve as pilot in command under IFR or in weather conditions less than the minimtims 

prescribed for VFR until that person passes an instrument proficiency check 

consisting of a representative number of tasks required by the instrument rating 

practical test. 

The Final Notice of Proposed Civil Penalty imposed a $3,850 Civil Penalty for the 

alleged violations. Applicant, through counsel, requested a formal hearing. On October 28, 

2009, Judge Goodwin issued a Procedural Order for the above captioned case. On November 5, 

2009, Applicant filed a Motion to Dismiss in Lieu of Answer. On December 7, 2009, Judge 

Goodwin denied Applicant's Motion, stating "The pleadings show that Respondent has not met 

its burden of demonstrating that it is entitled to judgment as a matter of law." Judge Goodwin 

ordered Applicant to file an Answer to the Agency's Complaint which it did so on December 15, 

2009. 
On March 23,2010, Applicant filed a Motion for Decision. On March 29,2010, the 

Agency filed a Motion for Decision without a Hearing and Response to Respondent's Motion for 

Decision. Judge Goodwin issued an Order on Motion on April 5, 2010, ordering the parties to 

file an Agreed Statement of Facts and Legal Briefs. The Agency and Applicant filed the required 

statement and briefs and, on August 11,2010, Judge Goodwin issued a decision dismissing the 

alleged violations against Applicant. On September 10,2010, Applicant filed its Application for 

an Award of Attorney Fees and Other Expenses Pursuant to the Equal Access to Justice Act. 

THE APPLICABLE LAW 

The Equal Access to Justice Act (EAJA) requires the government to pay certain attorney fees 

and costs to a prevailing party unless the government establishes that its position was 

substantially justified or that special circumstances would make an award of fees unjust. 

5 U.S.C. § 504(a)(1). While most cases are ultimately decided based on a careful balancing of 

their unique facts, there are some basic principles that are well established by EAJA precedent. 

In Gary J. Lee. 2010 WL 3349550, FAA No. CP10SW0008 (Aug. 24, 2010), the Administrative 

Law Judge explained the statute and regulation's term "substantially justified": 

An action is substantially justified when it has a reasonable basis in law and fact. Pierce 

V. Underwood, 487 U.S. 552, 565 (1988); 14 CFR 14.04(a); Michael Edward Wendt, 

FAA Order 93-9 (March 25,1993), p. 3. The charges must be justified to the degree that 

could satisfy a reasonable person. The standard is met if there is a "genuine dispute," or if 

reasonable people could differ as to the appropriateness of the contested action. Pierce v. 

Underwood, p. 565. The agency must show (a) a reasonable basis in truth for the facts 

alleged; (b) a reasonable basis in law for the legal theory propounded; and (3) a 

reasonable connection between facts and theory. Valley Air Services, Inc., FAA Order No. 

95-27 (December 19,1995), p. 6, pet. for reconsid. denied, FAA Order No. 96-15 (May 

3, 1996); Smith v. National Transportation Safety Board, 992 F.2d 849, 852 (8* Cir. 

1993). 

Failure to prevail does not raise a presumption of lack of substantial justification. It must 

not be assumed that the government's position was not substantially justified simply 

because it lost on the merits. Morgan v. Perry, 142 F.3d 670, 685 (3'"'' Cir. 1998); Bay 
Area Peace Navy v. United States, 914 F.2d 1224, 1231 n. 4 (9* Cir. 1990); Michael 

Edward Wendt, FAA Order 93-9 (March 25,1993), p. 3. The agency need not 

demonstrate that it had a substantieil likelihood of prevailing to prove that its litigation 

position was substantially justified. Kiareldeen v. Ashcroft, 273 F.3d 542, 554 (3^"^ Cur. 

2001); Michael Edward Wendt, FAA Order 93-9. 

The agency is entitled to 'err' on the side of bringing close cases to trial to fiilfill its 

mandate of enforcing and ensuring air safety. 

In determining whether the government is substantially justified under EAJA, a court 

should deny an application for costs and fees if "the Government acted slightly more than 

reasonably, even though not in compliance with substantive legal standards applied in the 

merits phase." Federal Election Commission v. Rose, 806 F.2d 1081, 1087 (D.C. Cir. 

1986). Additionally, each allegation of the government's case should not be separately 

examined to determine whether it is substantially jusitifed. Gary J. Lee, 2010 WL 

3349550, FAA No. CP10SW0008, 2 (Aug. 24, 2010). Rather, the examination must be 

broadly focused. As explained in the denial of the EAJA application in Gary J. Lee, 

"'[sjubstantial justification' connotes an active, searching inquiry into the quality of 

evidence advanced and the overall reasonableness of the agency's position." (citing 

United Brotherhood of Carpenters and Joiners v. NLRB, 891 F.2d 1160, 1163 (5th Cir. 

1990)). Thus, the government's case must be examined as a whole, and each position 

taken by the government must be viewed in light of how it affected the case as a whole. 

The Agency is substantially justified in pursuing an action if it relied on a reasonable 

interpretation of the evidence or had a "reasonable basis for proceeding." Application of Custom 

Aviation Inc., 2005 WL 6499275, FAA No. CP05NM0008 (June 15, 2008). The Ageny does not 

need to demonstrate that it had a substantial likelihood of prevailing in order to avoid EAJA fees. 

Id (citing Kiareldeen v. Ashcroft, 273 F.3d 542, 554 (3d Cir. 2001)). 
Regarding the amount of any award if the government is ever foimd not to be substantially 

justified in its actions, pursuant to 14 C.F.R. § 14.05(b), "no award for the fee of an attorney or 

agent under this part may exceed $125 per hour." Furthermore, a. pro se litigant may not recover 

attorney's fees imder EAJA. Securities and Exchange Commission v. Waterhouse, 41 F.3d 805, 

808-809 (2d Cir. 1994). See also In the Matter of Western Air Express, 2009 WL 1765808, FAA 

No. CP09SW0003, 2 (June 19, 2009)(where the majority shareholder/sole employee of the 

Applicant company sought reimbursement for his time and effort expended in defending 

Applicant company's case, the court held that the reimbursement sought was largely the 

employee's valuation of time he spent as a corporate employee which is not the type of fees and 

expenses authorized vmder EAJA). 

UNDERLYING EVIDENCE AVAILABLE TO THE AGENCY 

Judge Goodwin's intrepetation of 14 C.F.R. § 61.57(d) determined the outcome of this case. 

Applicant and the Agency took different views of the language of § 61.57(d); however, the 

Agency's interpretation of the regulation was reasonable and "substantially justified" based on 

the agreed facts. On April 23, 2010, the Agency and Applicant submitted an Agreed Statement 

of Facts as follows: 

1. On September 21, 2009, Respondent, Recurrent Training Centers, Inc., 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 Respondent's timely written request for a 

hearing. 

3. Respondent holds and at all times mentioned herein held an Air Agency 

Certificate Number R9KS949K for an approved Provisional Pilot School with a 

Special Preparation Courses rating issued by the FAA. 
4. RTC also holds and at all times mentioned herem held Training Center Certificate 

Number R9KX049K with Training Specifications to conduct Gaining courses 

with respect to 14 C.F.R. 142. 

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

completed an Instrument Proficiency Check and on December 17, 2007, RTC 

certified that Mr. Moore successfiilly 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 are the FTDs approved for RTC. 

The Agency's reasonable intrepetation of 14 C.F.R. § 61.57(d) required that Applicant test 

for those representative tasks required by the Instrument Rating Practical Test standards (PTS). 

According to the admitted facts. Applicant did not test for two maneuvers required by the PTS 

and, therefore, the Agency was substantially justified in asserting that Applicant violated the 

Federal Aviation Regulations. The Agency's position was reasonable based both in law and fact 

and, therefore, the Application for an Award pursuant to EAJA should be denied. On December 

7, 2009, Judge Goodwin denied Applicant's Motion to Dismiss the Agency's Complaint, further 

demonstrating the reasonableness of the Agency's position. In response to Applicant's motion. 

Judge Goodwin stated that "The pleadings show that Respondent has not met its burden of 

demonstrating that it is entitled to judgment as a matter of law." 

APPLICANT'S CLAIM UNDER EAJA 

The Applicant seeks 100% of his cost of legal representation based on the fact that Judge 

Goodwin dismissed the Agency's Complaint and found that the allegations were not proven. The 

Applicant also seeks 100% of reimbursement for its President's research regarding the Agency's 

Complainant. 
ARGUMENT 

I. Substantial Justification 

The Code of Federal Regulations at 14 CFR § 61.57(d) read as follows at the time of the 

violation: 

Instrument proficiency check. Except as provided in paragraph (e) of this section, a 

person who does not meet the instrument experience requirements of paragraph (c) of 

this section within the prescribed time, or within 6 calendar months after the 

prescribed time, may not serve as pilot in command under IFR or ui weather 

conditions less than the mmimums prescribed for VFR until that person passes an 

instrument proficiency check consisting of a representative number of tasks required 

by the instrument rating practical test. 

The FAA interpreted 14 C.F.R. § 61.57(d) to mean that that Applicant must perform instrument 

proficiency checks consisting of the specific, representative tasks required by the instrument 

rating practical test standards. The Applicant interpreted § 61.57(d) to mean that Applicant could 

perform instrument proficiency checks consisting of tasks typical of those required by the 

instrument rating practical test. The Agency's interpretation was reasonable based on a reading 

of the regulation along with the instrument rating practical test standards. The Agency was 

substantially justified in its action against Applicant for certifying instrument proficiency checks 

without testing the representative maneuvers or tasks required by the instrument rating practical 

test standards. 

The clear, imambiguous language of § 61.57(d) refers to the "representative number of 

tasks required by the instrument rating practical test." The Agency reasonably interpreted this 

langiiage to incorporate the "instrument rating practical test" standards into §61.57(d). 

Furthermore, the introductory page of the Instrument Rating Practical Test Standards ("PTS"), 

number FAA-S-8081-4D clearly states, in italic and bold wordmg, "Adherence to the provisions 

of the regulations and the practical test standards is mandatory for evaluation of instrument 
pilot applicants."^(note the emphasis in original). The PTS additionally state, "Applicants for an 

instrument proficiency check required by 14 CFR section 61.57 must perform to the standards of 

the TASKs listed in the guidance provided on page 16." Not only does §61.57(d) specifically 

incorporate the PTS, but also the PTS' unambiguous, strong wording mandates that the PTS be 

adhered to in order to successfully complete an instrument proficiency check. Therefore, when 

reading the regulation in conjunction with the PTS, the reasonable conclusion is that the PTS 

must be complied with when certifiying an instrument proficiency check in accordance with 14 

C.F.R. § 61.57(d). Applicant admittedly did not perform the representative tasks required by the 

PTS. Applying its reasonable interpretation of the regulations to the agreed facts, the Agency 

was substantially justified in its position that Applicant's failure to test for certain tasks was a 

violation of the Federal Aviation Regulations. 

The Applicant relied upon a portion of 14 C.F.R. § 61.57(d) in his defense where the 

regulation states that "a representative number of tasks" required by the PTS are required for an 

instrument proficiency check. It argued that it had completed a representative number of tasks 

and that not all of the PTS tasks were required, and therefore it did not violate 14 C.F.R § 

61.57(d). However, the FAA reasonably concluded that the term "representative" does not mean 

that the Applicant gets to choose what tasks are tested from those listed in the PTS. Rather, it 

refers to the "representative" tasks already spelled out in the PTS and requires that those tasks be 

tested. From all of the possible tasks that an IPC could check for, the PTS has already 

determined which tasks are the necessary, representative tasks for any given Aera of Operation.^ 

The FAA reasonably determined that the tasks outlined in the PTS are the representative tasks 

required by § 61.57(d). This position is extremely logical based on a reading of the regulation in 

' See Agency's Opening Brief field April 5, 2010, Page 4 and Exhibit A-2, page 2/16. 
conjunction with the PTS. Therefore the FAA was substantially justified by arguing that 

Applicant violated § 61.57(d) because it failed to test for two maneuvers required by the 

representative tasks outlined in the PTS, and, therefore, also required by 61.57(d). 

While Judge Goodwin accepted Applicant's interpretation of the regulation, the Agency had 

a reasonable interpretation of the regulation and applied it to the undisputed facts of the case. The 

FAA interpreted 14 C.F.R. § 61.57(d) to mean that that Applicant must perform instrument 

proficiency checks consisting of the specific, representative teisks required by the instrument 

rating practical test standards. The Applicant interpreted § 61.57(d) to mean that Applicant could 

perform instrument proficiency checks consisting of a representative sample of the representative 

tasks required by the instrument rating practical test. Neither the FAA, the Applicant, nor Judge 

Goodwin had the benefit of previous interpretations or case law to rely upon when interpreting 

this regulation. The FAA's interpretation was reasonable in that it looked at the language of the 

regulation and its explicit inclusion of the practial test standards, which vmarguably require 

instrument proficiency checks include maneauvers that Applicant did not perform. The 

regulation was reasonably interpreted to require that instrument proficiency check comply with 

the Instrument Rating Practical Test standards. This interpretation of the regulation is extremely 

logical and reasonable and, while not the interpretation adopted by Judge Goodwin, the FAA was 

substantially justified in its mterpretation. 

As mentioned above, there was not confiicting evidence, rather conflicting interpretations of 

regulations that until now have not been examined by the court. As indicated by Judge 

Goodwin's denial of Applicant's November 5, 2009 Motion to Dismiss, the Agency brought 

forth enough evidence to sustain a Motion to Dismiss. The Agency was substantially justified in 

^ See Agency's Opening Brief field April 5, 2010, Exhibit A-2, page 2/16. 
pursuing an action if it relied on a reasonable interpretation of the evidence as it applies to the 

law. The fact that the Administrative Law Judge interpreted the undisputed facts and how they 

applied to the regulations differently than the Agency does not render the Agency's position 

unjustified. 

II. Award 

Even if it is found that the Agency was not justified in its actions,, the requested award 

should be severely reduced as Applicant is not entitled to an hourly rate in excess of that 

provided by statute and is not entitled to reimbursement of Mr. Killeen's excessive efforts. 

Although Applicant's attorney cites an hourly rate of $200, pursuant to 14 C.F.R. § 14.05(b), 

the Applicant should not be awarded attorneys fees in excess of $125 per hour. Additionally, if 

Applicant's attorney had such unique expertise that it required an hourly rate above and beyond 

that permitted by statute and regulations, there is no reason that Applicant would also need the 

services of its own President to assist Applicant's attorney. 

A review of Applicant's Application for an Award of Attorney Fees and Other Expenses 

Pursuant to the Equal Access to Justice Act (EAJA) Exhibit F illustrates that Applicant's own 

President attempts to act as Applicant's attorney as he performed legal work such as researching 

statutes, regulations, the federal register, notice of proposed rule makings, court of appeals 

decisions, and NTSB decisions. As in Securities and Exchange Commission v. Waterhouse, 41 

F.3d 805, 808-809 (2d Cir. 1994) and In the Matter of Western Air Express, 2009 WL 1765808, 

FAA No. CP09SW0003, 2 (June 19, 2009), Mr. John Killeen, President of Recurrent Trainmg 

Center (Applicant) attempts to be reimbursed for his efforts representing his own company. Mr. 

Killeen was essentially "conducting a pro se defense on behalf of a corporation of which he is the 

alter ego. The amoimts for which he now seeks 'reimbursement' are largely his own valuation of 

10 
time he spent as a corporate employee. They are not the type of fees to attorneys and agents and 

similar litigation expenses for which Congress authorized reimbursement imder the EAJA." 

Western Air Express, 2009 WL 1765808, FAA No. CP09SW0003,2 (June 19,2009). 

If Mr. John Killeen (President of Applicant/RTC) was hired as an independent subject matter 

expert to assisit Applicant's attorney in representing Applicant (RTC), the amoimt of time spent 

and allegedly charged to RTC is extrememely excessive. Although the FAA's position can be 

understood by spending an hour or two reviewing the regulation and PTS, Mr. Killeen allegedly 

charged RTC for over seventy-nine (79) hours of research and analysis. If the government is not 

foimd substantially justified, at most, Applicant should only be entitled to the cost of a few of 

Mr. Killeen's research. Furthermore, if Applicant's attorney is an expert in the area, there should 

be no need for Applicant to pay its President for research and anlysis. 

Consequently, if the FAA is found to not be substantially jusitified in its actions, the 

requested award should be severely reduced as Applicant is not entitled to an hourly rate in 

excess of that provided by statute and is not entitled to reimbursement of Mr. Killeen's excessive 

efforts. 

CONCLUSION 

The Agency had and presented reasonable evidence and arguments that its interpretation of 

14 C.F.R. §61.57(d) requiring Applicant to perform an instrument proficiency check in 

accordiance with the representative tasks required by the Instrustrument Proficiency Test 

Standards was substantially justified. Judge Goodwin found that the FAA did not prove that the 

Applicant violated the Federal Aviation Regulations, not because of a factual dispute, but rather 

because of a different interpretation of the regulations as applied to the facts. This does not 

render the position of the Agency less than substantially justified. Given the facts of this case 

11 
and the evidence available and presented, the Agency was substantially justified in defending the 

appeal of its September 21,2009 Final Notice of Proposed Civil Penalty. Therefore the 

Applicant's claim should be denied in its entirety. 

However, if it is found that the Agency was not substantially justified in his position, then the 

award requested should be reduced. 

Dated: October 8,2010 Respectfully submitted. 

\\(VJi^.ik 

Briana Martino 

Attorney, AGL-7M 

Federal Aviation Administration 

Office of Regional Counsel 

2300 E. Devon Avenue 

Des Plaines, IL 60018 

Phone: 847-294-7313 

FAX: 847-294-7498 

briana.martino@faa.gov 

12 
CERTIFICATE OF SERVICE 

I hereby certify that I have, this date, served the foregoing Agency's Response to 

Application for an Award of Attorney Fees and Other Expenses Pursuant to the Equal 

Access to Justice Act (EAJA) by mailing copies thereof, via Regular Mail, as follows 

Original and 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 

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 

FAX: 202-366-7536 

Charles R. Barnett, III 

Applicant's Counsel 

1664 Moorland Lane 

Crystal Lake, IL 60014-2985 

Dated this 8*^ day of October, 2010 

da Quiles 

Technician 

13