SERVED DECEMBER**2~,** 2014 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THEMATTEROF TRANS NORTHAVIATION, LTD FAA DOCKETNO. (2012-GL-03-0012) FDMS NO. (FAA-2013-0046) (Civil Penalty Action- JudgeRichard C. Goodwin) 

# FiECEIVED JAN 09 2015 

## HEARING DOCKET 

# ,:JOIY- 

# IIIi·

APPLICATIUNFORANAWARDOFATTORNEYFEESANDOTIIEREXPENSES PURSUANTTOTHEEQUALACCESSTOJUSTICEACT NOW COMES the Applicant, TRANS NORTH AVIATION, LTD., (herein "Trans North") by and through its counsel, BARNETT & BORTH, LLC., andpursuantto 5 U.S.C. §504 and 14 C.F.R. 

### § 14.01 et seq. (hereafter "EAJA") hereby applies for attorney fees and other expenses incurred inThe Matter ofTrans North Aviation, LTD, FAA Docket No. (2012-GL-03- 0012). PERTINENT PROCEDURAL H.ISTOR'I': On December 9, 2011, the FAA sent Trans North a letter of investigation that stated: "Additionally, Trans North Aviation LTD mayhave assigned a flight crewmemberto a duty that exceeded theirflight time and duty time requirements." (See Exhibit 1). On December 18, 2011, Trans North's attorneys filed Trans North's response to the December 9, 2011 letter of investigation stating that: "Trans North Aviation, LTD dispatched N59773 on November 28, 2011 in accordance 

### with the dispatch requirements of 14 CFR 135. At the time ofdispatch the pilot in command should have been able to complete the dispatched flight wi.thin the duty day limitations

... Should you require any additional information, please contact this office and wewill be happyto assist you." (See Exhibit2). Subsequentto Trans North'sresponse, the FAA did not request any further information respecting Trans North flight assignment. On December 22, 2011, the FAA sent Trans North a letter ofinvestigation requesting information regarding fuel policies and records ofdisciplinary actions ofthepilots. (SeeExhibit3) On January 13, 2012, Trans North's attorneys filed Trans North's response to the December 22, 2011 letter ofinvestigation that provided the requested information. (See Exhibit 4). On July 12, 2012 FAA attorney Adrianne Wojcik served Trans North with a Notice of Proposed Civil Penalty alleging that Trans North violated 14 CFR §135.267 (b)(l) and 14 CFR §135.267 (d). (See Exhibit 5). The allegation pertinent to this application is contained in paragraph 6 ofthe July 12, 2012 Notice that alleges that: "Trans North assigned 

### Mr. Didier as Pilot-in-Command ofthe flight on November 28, 2011, which did not provide for at least 10 consecutive hours ofrest duringthe 24-homperiodthatprecededtheplannedcompletiontime of theflight assignment." (See Exhibit 5 atp.2 

### 4f 6). On January 15, 2013 FAA attorney Adrianne Wojcik served Trans North with a Final Notice ofProposed Civil Penalty alleging that Trans North violated 14 CPR §135.267 (d). (See Exhibit 6). Again the FAA allegedthat: "Trans North assigned Mr. Didier as Pilot-in-Command ofthe flight on November 28, 2011, which did notprovide for at least 10 consecutive hours of rest during the 24-hour period that preceded the planned completion time of the flight assigrunent." (See Exhibit 6 at p.2**~** 5). On July 23, 2013, this case was tried before Administrative Law Judge, Richard C. Goodwin, with FAA attorney Jeanette Daubaras representing the FAA. On September 5, 2013, the FAA filed 

### its "Closing Brief' 1•. The FAA

I Atthe close ofthe evidence inthe hearing, Judge Goodwin allowedthe FAA to file a post-hearing briefbased on the FAA's representationthat the KiddInterpretation Letter that was used by Respondent's counsel for cross examination ofthe FAA's witnesses was not an accurate statement ofthe law. 2

### failed to cite one case or one legal interpretation letter that cotmtered the Kidd interpretation letter. Instead the FAArelied on cases and interpretationletters that concern part 121 operations. Respondent moved to strike the briefonthatbasis that it wentfar beyond the instructions provided by Judge Goodwin and failed to address the Kidd Interpretation Letter. On September 25, 2014, Judge Goodwin served his 

### Initial Decision finding against Trans North. (See Exhibit 7). On November 10, 2014, Trans North filed its appeal briefciting the ntm1erous errors in the FAA's position and the Judge's adoption of those positions. After having an opportunity to review the file and read Trans North's appeal brief, on December 1, 2014 the FAA decided to withdraw its complaint against Trans North. (See Exhibit 8). In 

### addition, the FAA decided to withdrawthe Judge's order assessingthe civilpenalty against TransNorth. (See Exhibit 9). On December 2, 2014, Trans North filed its motion to dismiss the case with prejudice. (See Exhibit 10). On December 3, 2014, the FAA filed its Motion in Support of Trans North Aviation's Motion to Dismiss. (See Exhibit 11). On December 4, 2014, the Administrator granted Trans North's Motion to Dismiss and dismissed the complaint and proceedings with prejudice. (See Exhibit 12). Trans North now timely files this EAJA Application for Fees. Accordingly, this applicationistimely and appropriate in accordance with 14 C.F.R. §14.20(a) as itis filed no laterthan 30 days afterthe fmal disposition oftheproceedings, the decision maker's final disposition ofthe proceedings. TRANSNORTHIsTHE PREVAILING PARTY. 

### The test for determination ofprevailing party status is set forth in the case ofDistrict of Columbia v. Straus, 590 F.3d &98, 901 (D.C. Cir. 2010)("(1) there must be a 'court-ordered change in the legal relationship' ofthe parties; (2) thejudgment must be in favor ofthe party seeking the fees; and (3) thejudicial pronotmcement must be accompanied byjudicial relief.").

3Subsequentto that decisiontheNTSB addressed we discussed the test, 

### in dicta, 

### inAdministrator

v. Koch. NTSB OrderNo. EA-5571 at 7 (2011). Inthe recent case ofApplicationofBordelon. the Board perfom1ed an extensive historical and contemporary review of the prevailing party tests and their application to cases involving the FAA taking into account the Supreme Court's decision in Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources 532 U.S. 598 (2001) and various pronouncements and opinions in NTSB

cases and adopted the Straus test. Application ofBordelon, NTSB OrderNo. EA-560l(October 24, 2011). 

### ill Bordelon, the Administrator issued an emergency order seeking revocation of the applicant'smechanic certificate withA&Pratings based upon applicant's alleged failure to make appropriate entries in the aircraft logbook and alleged failure to perform maintenance in accordance with the proper methods and techniques in violation of 14 C.F.R. §§ 43.9(a)(2) and (a)(4) and 43.l3(a) and (b).6 Id. at p. 3. The lawjudge set a hearing for the case and discovery ensued. Id. The applicant's deposition testimony convinced the FAA counsel that the procedures performed did not amount to violations ofthe CFR as previously alleged. As a result, the Administrator moved to withdraw the complaint, without prejudice. Id. The Applicant thenfiled a motionto tenninate the proceedings with prejudice the following day. Id. The lawjudgethen granted the withdrawal ofthe complaint with prejudice. ld. The Boardheld that: 

### By entering an order dismissing the proceedings with prejudice, the law judge took the FAA's so-called voluntary act of withdrawing the complaint and indelibly marked it with his judicial imprimatur by dismissing the complaint with prejudice, effectively preventing the FAA from continuing its pursuit of charges against applicant. TI1e law judge's order clearly was in favor ofapplicant. Bordelon, atp. 11.

4The present case satisfies the three part Strauss test since there was (1) be a 'courtordered change in the legal relationship' ofthe parties; (2) the judgment was in favor ofTrans North; and (3) thejudicial pronouncement was accompanied byjudicial reliefin the form ofa dismissal withprejudice precludingthe FAA from seeking any further sanction orpenalty onthe facts ofthis case. Accordingto Straus, apartyneedreceive only some form of judicialrelief, not necessarily a court-ordered consent decree or ajudgment on the merits. See, Carbonell v. INS, 429 F.3d 894, 899 (9th Cir.2005) (collecting cases from the "vast majority" ofcircuits holding prevailing party status not so limited); see also, e.g., District ofColumbia v. Jeppsen, 514 F.3d 1287, 1290 (D.C.Cir.2008) (acknowledging possibility that "ruling on a jurisdictional ground" may create prevailing party despite absence of a judgment on merits); Select Milk Producers. Inc. v. Johanns, 400 F.3d 939, 945 (D.C.Cir.2005) (grant ofpreliminary :injunction may create prevailing party "under certain circumstances"); Carbonell, 429 F.3d at 895-96 (plaintiff who "obtained a court order incorporating a voluntary stipulation" staying plaintiff's deportation was prevailingparty). Inthis case the dismissal with prejudice was not only requested bythe applicant but was consented tobytheFAA. This isnot a case inwhich there is any question thatthe dismissal was with prejudice and, therefore, forever changed the legal relationship ofthe parties. The FAA finally saw the light when its senior attorneys reviewed the case and read Trans North's appeal briefthat set forth all ofthe reasons whythe case shouldnothave been brought in the rust place. In advance ofthat revelation, the case had gone through protracted litigation and a hearing on "themerits". A case that should carry significant weight inreviewing the present application is Green Aviation Management Co

.. LLC v. FAA, 676 F.3d 200 (2012). In Green, the United States



### 5

### Court ofAppeals for the District ofColumbia Circuit reviewed a casethatinvolved many ofthe arguments that the FAA may make in this case. In 

### Gree!!, like the present case, the FAA commenced an action for administrative civil penalties and then withdrew its complaint Id. at 201. Like the present case, the Respondent then moved to dismiss the case with prejudice. Id. Like the present case, the case was dismissed with prejudice. Id. The FAA Administrator decided that the applicant was not a "prevailing party" as that term has been interpreted in Buckhannon Bd. & 

### Care Home, Inc. and denied the applicant request for EAJA relief on that hasis. Id. On appeal, the D.C. Circuit held that the dismissal with prejudice (despite the FAA's argument that a dismissal with prejudice is required by 14 C.F.R. 

### § 13.215) has res judicata effect and ended the proceedings. Accordingly, the Court determined that the applicant was the prevailing party and remanded the case to the Administrator to make a detennination on whether

or notthe Administrator's filing ofthe complaint was substantiallyjustified. Id. Supportive of its decision in Green was the fact that the applicant, by virtue of the dismissal with prejudice, was "protected from having to pay damages" since the FAA could not re-file a complaint based on the same set offacts because the dismissal with prejudice has res judicata effect Id. at 204-205. This is exactly where Trans North finds itselfin this case. The dispositive nature of the dismissal with prejudice places Trans North in a significantly better position, Instructive to this issue is the holding ofthe Green Court as follows: Even though the ALJ's penmsswn was not needed for the complaint to be withdrawn, the resulting dismissal was a clear form of judicial relief, not simply a "housekeeping measure," Turner, 608 F.3d at 16. Similarly, the dismissal order was not "merely a formality," as in Oil, Chemical, & Atomic Workers, 

### where the dismissal order was unnecessary, 288 F.3d at457 (citing FED. R. CIV. P. 4l(a)(l)). The FAA regulation, 14 C.F.R. § 

### 13.215, makes clear that the dismissal order is necessary; ifit were

6not, there would be no purpose to providing the defendant an interlocutory appeal by right to obtain one, see id. § 13.219(c)(2). Because a silent dismissal order is presumed to be without prejudice, see Turner, 608 F.3d 15-16, an explicit dismissal with prejudice, even if mandated by regulation, must be accorded substantivelymeaningful ratherthaninsignificant effect, cf. Corley v. UnitedSlates, 129 S. Ct. 

### 1558, 1566 (2009). Green at 205. On the issue ofthe e:!'.fuct ofthe dismissal with prejudice when viewed in light ofthe purposes behind the EAJA and the application ofthe EAJ A in FAA matters, the Green coun conectly detelTllined that: Green Aviation obtained judicial relief by the dismissal order; nothing in Buckhannon or this court's precedent requires more. This conclusion comports with the pmpose ofthe BAJA, which is to prevent defendants from "be[ing] deterred from seeking review ofor defending against unreasonable governmental action because ofthe expense involved." H.R. CONF. REP. NO. 96- 1434, at 21 (1980), reprintedin 1980 U.S.C.C.A.N. 5003,5010 (1980). Green, at 205. The established jurisprudence on the determination ofprevailing party status in on all fours with the facts ofthis case. As a practical matter, this 

### is not a case in which the FAA conducted an investigation and upon**dete~mining** that the facts ofthe case did not support full litigation and simply walked away. This case involved protracted litigation and significant efforts by Trans North to establish how wrong both the FAA and the lawjudge were in their analysis and application of 14 CFR 

### §135.267 (d). To say now that Trans North is not 1he prevailing party given 

### all ofthe history ofthis case simply makes no sense. Accordingly, Trans 

### North shouldbe deemedthe prevailingparty

### inthis case.

TRANSNORTH MEETS THEELIGIBILITY REQUIREMENTSOFTHEEAJA

7The EAJAat 14 C.F.R. 

### § 14.03 sets forth the eligibility requirements ofEAJA applicants. Specifically pertinenttothis applicationis, 14 C.F.R. 

### § 14.03 (b)(5) which states: (5) Any otherpartnership, corporation, association, or public or p1ivate organization wiJh a net worth ofnot more than $7 million and not more than 500 employees at the time the adversary adjudication was initiated. 14 C.F.R. 

### § 14.03 (b)(5). Atthe time ofthe adversary adjudication ofthismatter, Trans North was a corporationin good stand organized under the laws ofWisconsin. (See Exhibit 13). Trans North attaches to this Application the Affidavit of Trans North's director ofoperations and net worth statement consistent with 14 C.F

### .R. 

### § 14.11 (See Exhibits 14 and 15) that demonstrate that at the time of the initiation ofthe adversary adjudication Trans North's corporate net worth was Jess than $7 million and Trans North had fewer than 500 employees. Accordingly, Trans North meets the eligibility requirements ofEAJA applicants. THE FAA's POSITION FAILED TO PROPERLY AI'I'LY 14 C.F.R. SECTION 1J5.267(D) AND 

### WAS, THEREFORE,

### NoTPROPERLYJUSTIFIED. The analysis respecting the question ofsubstantialjustificationcenterupon boththe basic concepts concerning the proper application of 14 C.F.R. § 135.267(d) and the FAA's completely misplaced interpretation of 14 C.F.R. 

### § 135.267(d), its outright ignorance of the proper application of 14 C.F.R. § 135.267(d), or the application of concepts that stem from the inapplicable regulations contained in 14 C.F.R. § 121. At many stages in the investigation and litigation ofthis case the FAA was provided clear, convincing, logical and supported evidence that Trans North did not violate 14 C.F.R. 

### § l35.267(d). Most telling is the fact that when the FAA was investigating this case 

### it never determined·the parameters ofTransNorth's assigmnent ofthe subject flight, the dispositive factor in any 14 C.F.R. 

### § 135.267(d) investigation. The



### 8

### FAA's conduct and position was not substantially justified and in fact was not in any way justifiedinthis from investigationthrough appeal. Trans North was accused ofviolating 14 C.F.R. Section 135.267(d) alone. (See Exhibit 6) , Final Notice ofProposed Civil Penalty). There are no allegations that Part 121 was violated, that Trans North deviated from its operations specifications or that Trans North violated 14 C.F.R. 

### Section 135.267 (b)(2) concerningthetotal flight time ofthe assigned flight

. In 

### addition, there are no allegations that the pilots involved violated any regulation. The only alleged violation concernsthe certificateholder, Trans North. When investigating and reviewing a case under 14 C.F.R. § 

### 135.267(d), the FAA, through its legal interpretation letters, has established what amounts to a step by step process for analyzing whether§ 137.267(d) was violated ornot. To begin, the only regulation at issue inthis

case states as foilows: § 135.267 Flighttime limitations andrestrequirements: (d) Each assignment under paragraph (b) 

### of this section must provide for at least 10 consecutive hours ofrest during the 24-hour period that precedes the planned completion time of the assignment. 14 C.F.R. § 

### 135.267 (d)(Emphasis supplied)(See Exhibit R5). Therefore, the first step in

### the analysis should have been an inquiry and understanding of the planned assignment 

### that was created by Trans North by its Director of Operations, 

### :Mr. Schaberg. The second step in the analysis should have been an inquiry and understanding of whether or not 

### :Mr. Schaberg's assignment realistically was scheduled to allow 

### :Mr. Didier at least 10 hours ofrest in the 24 hour period that preceded the planned completion time ofthe assignment. The final step in the analysis concerns unforeseeable delays that serve as

9circumstances beyond the control of the certificate holder, Trans North and can serve as exceptionstothepre-assignmentrestrequirements of 14 C.F.R. Section 135.267(d). During the FAA's investigation and during the FAA's presentation of its case at the hearing ofthis matter, the FAApaid no attention to the above referenced analysis. The FAA's focus and somehow the Judge's focus as well 

### was upon the actual flight times and the pilots actions respecting the actual flight and actual flight times whenthe only focus in a case involving 14 C.F.R. § l35.267(d) should be upon the certificate holder's planned assigument and the calculationofthe 10 hour

### rest periodbased onthe planned completiontime ofthe assigument. FAAINSPECTORSANDRABOERMAN'S "!NVESTIGA TION" ON FLIGHTAsSIGNMENT: Early on in the investigation, the FAA learned that Trans North's intemal and approved assignment procedures included verbal instructions to the assigned pilot concerning the parameters ofthe planned flight assignment. The FAA knew that there existed no writing or document that set forth what the planned assigmnent was. The FAA utilized Aviation Safety Inspector, Sandra Boerman, to investigate Trans North and testifY on and the FAA's position at the hearing of this matter. (TR 65-66:21-2). In Ms. Boerman's transcript of her interview December 14, 2011 ofTrans North's assistant chiefpilot Quentin Levitte she wrote: "There is

no written documentation ofthe assignment[,] just verbal." (See Exhibit 16). Ms. Boerman confirmedthe Trans Northcompanypolicythatthe assigument comingfrom 

### Mr. Schaberg to the pilots was verbal and that she was not able to find any flight assignment orplanning documents that were generated by Trans north orMr. Schaberg during her investigation. (TR 130:16-19). In her December 7, 2011 interviews ofFO Andrew Wolfand t1ight paramedic, Maynard Blodgett, Ms. Boerman did notpose any questions onthe subject ofthe flight assigument. (See Exhibits 17 and 18). Ms. Boerman interviewed Mr. Schaberg, Mr. Blodgett and Mr. Wolfin



### 10person and memorialized the interviews on FAA telephone conversation forms. (TR 69:4-15). Rather than focusing on the planned assignment, Ms. Boerman reviewed documents including load manifests and flight plans :filed by the pilots that listed the different pilots for the different legs ofthe assignment. (TR 74:3-!4). From the load manifests andthe fligbt plans filed by the pilots, Ms. Boerman determined that whenMr. Didier took 

### offfrom Jessup Georgiahe onlyhad one hour ofhis duty day left and that he could not complete the 3 hour and 25 minute flight to Chicago withoutviolating his rest period requirements. (TR 83:5-14). This had nothing to do with the flight assignment issued by Trans North. Mr. Boermantestifiedthat in arriving at that conclusion she hadno documentation concerning Trans North or Mr. Schaberg's assignment of the flights. (TR 84-85:20-2). She testifiedthat "It'sall aboutplanning" (TR 84:20). However, Mr. Boerman never ascertained what the planned fligbt assignment actually

was orhow it was planned by Mr. Schaberg. The IFRflight plans that Ms. Boermanreferred to inher investigation came from Flight Aware and demonstrated that all IFRflight plans for these flights were filed by the pilots, not the certificate holder, Trans North/Mr. Schaberg. (TR 87:5- 20). According to Ms. Boerman, the documents that she utilized to obtain fligbt times and durations offlight were 

### all documents that were :filled out or generated by the pilots, not Trans North or Mr. Schaberg. (TR 102:4-16). During Ms. Boerman's interview with Mr. Wolf, Mr. Wolfinformed herthat Mr. Schaberghad assigned 

### him to fly the part 91 flights from Indiana to Florida. (TR 118:1 9-22). Affidavits executed bybothMr. Schaberg and Mr. Wolfalso verified this early on in the investigation phase ofthis case. (See Exhibits 17 and 18). Mr. Schaberg's affidavit also set forth a portionofhis planned t1ight assignment by averringto howhe had assigned thetwopilots

11(Didier and Wolf) to fly separate segments ofthe assignment. (See Exhibit 19). Placing these statements incontext, theplanned assignment allowed for appropriate pre-assigrnnentrest. Ms. Boerman testified that none ofthe documents that she reviewed indicated that there had been any departure delays. (TR 130:3-9). Ms. Boerman confirmedthe TransNmth company policy thatthe assignment coming from 

### Mr. Schaberg to the pilots was verbal and that she was not able to fmd any flight assignment or planning documents that were generated by Trans north

or 

### Mr. Schaberg during her investigation. (TR 130:16-19). Ms. Boerman later discovered that there was a delay in pilots' departure from Palm Beach due to thepatient arriving late. (TR 

### 134- 135:17-3). Ms. Boerman did not consider the late arrival ofthe patient to be an unforeseen circumstance and based on the pilot filed documentation that she had and that Trans North violated 14 CPR§ 135.267(d). (134:3-16). Ms. Boe1man testifiedthatother thantherudimentary conversationthat she hadwith 

### Mr. Schaberg at the scene of the accident on the day following the accident, she had no further conversations with 

### Mr. Schaberg prior to recommending that the FAA should invoke a civil penalty against Trans North. (TR 138-139:15-21, 140:5-10). Ms. Boerman did not memorialize any conversation that she had with 

### Mr. Schaberg as she did with the other witnesses that she interviewed. (TR 139:5-12). Accordingto Ms. Boerman, the local FSDO,theregional oftlceand the FAA counsel were all involved inher investigationbut, to herknowledge, no one at the FAA documented anything about Trans North's assignment for the subject mission. (TR 163:21-4, 164-165:15-1). Ms. Boermantestified that neither inthe FAA's letter ofinvestigation nor anywhere else did she or the FAA request 

### any infonnation of documentation concerning 

### Mr. Schaberg's planning ofthe flight assignments thatpreceded the subject flights. (TR 142-143:1-6). Based on

12the fact that Trans North communicates it planned assignments verbally, there exists no way for the FAA to verify the planned assignment other than speaking with the pilots who received the assignment or Mr. Schaberg, the creator ofthe planned assignment. Ms. Boerman agreed that part ofher duties were to interviewwitnesses, butthateventhoughnone ofthe witnesses that she interviewed knewthe specifics of

### Mr. Schaberg's assignment offlights andhis planning ofthose t1ights, she did not interview Mr. Schaberg anyfurther to determine what he consideredwhenhe constructedthe flight assignment that is the subject ofthis action. (TR 152-153:3-20). Q: As you sit here today, you do not know what Ron's [Schaberg] flight planwas for Didier and Wolfforthe trip downto West PalmBeachand backup to the Chicagoland area, correct? A: No, there's no documentation

... No, the company did not provide me anything. Q: Okay, and you never interviewed Mr. Schaberg for that info1mation either, correct? A: NotthatI recall. (TR 154:1-22). FAAINSPECTOR.JOHN MERRILL'S "INVESTIGATION" ON FLIGHTAsSIGNMENT: John Merrill is an Aviation Safety Inspector and Principal Operations Inspector for the FAA. (TR 14:19-22). Mr. Merrill was assigned as the Principal Operations Inspector for Trans North. (TR 17:7-10). 

### Mr. Merrill became involved in this case when Trans North's chiefpilot informed him that the subject aircraft crashed near Palwaukee airport. (TR 16-17:14-3)

. Mr. Merrill testified that he interviewed 

### Mr. Schaberg on the day following the crash and was informed by Mr. Schaberg that Mr. Wolfwas assigned by Mr. Schaberg as pilot incommand to flythe replacement 

### aircraft from Indianato West Palm Beach. (TR 23-24:18-13). Mr. Merrill testified that he did notperform any investigation about this accident but did complete an FAA inspector's report to document the conversations that he had with Trans North's ChiefPilot and Trans North's Director ofOperations, Mr. Schaberg. (TR 46-47:22-9). 

### Mr. Merrill did not ask Mr. Schaberg any questions concerning 

### Mr. Schaberg's assignment of



### l3the flights. (TR 48-49:1-5). Part of Mr. Menill's responsibilities as Trans North's Principal Operations inspector is to audit Trans North's books to make sure that Trans North complies with 14 CFR 

### § 135.267, however, he performed no such audit concerning the subject flight assignments. (TR 50-51:16-14). Mr. Menilltestifiedthat 14 CFR § 135.267(d) requires at least ten hours ofrest inthe 24 hour period that precedes the planned completion ofthe assignment. (TR 54:1-4). 

### Mr. Memll testified that ifMr. Schaberg created an assignment for Mr. Didier and Mr. Wolf that would allow for ten consecutive hours of rest that preceded the plrumed completion of the assignment, then Mr. Schaberg would be in compliance with 14 CFR § l35.267(d). (TR 55-56:11-2). TRANSNORTH'SEVIDENCE OFTHE FUGIITASSIGNMENT: The only evidence relevant to an investigation based on 14 C.P.R. § 135.267(d) came from Mr. Schaberg and this evidence was never considered by the FAA during their investigation of in the litigation that ensued. According to tbe law judge: "I find that all witnesses testified truthfully and were credible". (See Exhibit 7). Mr. Schaberg's testimony on the pla1med assignment wasjudicially detelTllined to be credible. Unfortunately, the FAA failed to ever seek Mr. Schaberg's explanation and instead unjustifiably brought this action. 

### Mr. Schaberg's testimony affirmatively and distinctly explained his planned assignment, verified the timing accuracy of his plan assignment with his Flightplan.com softwru·e progrrun, and affmnatively demonstrated that based on the planned completion oftl1e assignn1ent Mr. Didier had more than l0 hours of rest and was, therefore, realistically scheduled. Mr. Schaberg's testimony on this relevant topic went unrefuted and was not ever the subject of any cross examination.



### 14Respondent, Trans North, was established as a fixed wing air ambulance service that has been in operation for the past 31 years. (TR 208:2-4). Trans North operates its air ambulance service, transporting medical patients and their family members throughout North America and Canada. (TR 207:9-11). On the dates at issue, Trans North's operation consisted of approximately 5 aircraft and 5 pilots. (TR 208:21-22, 209:8-11). Trans North holds the appropriate FAA part 135 certificates for its operations. Ronald Schaberg is Trans North's President and Director of Operations charged with the responsibility as certificate holder to create flight assignments for the pilots employed and engaged by Trans North. (TR 207:2-4, 241 :14-21). On November 25, 2011, Intensive Air Ambulance, a Florida broker for air ambulance services, requested a quote from Trans North to provide air ambulance services to transport a patient from West Palm Beach Florida to Palwaukee Airport in Wheeling, Illinois. (TR210:6- 12). Trans North was informed that the patient in need of transport was an 80 year old gentleman who was extremely weak secondary to recent cardiac history, suffered from renal fuilure and required isolation as a precaution for MRSA infection. (TR 234:4-17). The patient's physician also ce1tified that the patient had severe cardiac disease and required assistance to administer oxygen, required suctioning ofhis airway. OnNovember 27,2011, at approximately 9:00 a.m., Trans North confmned the trip with the Florida broker. (TR 210:16-21). Subsequently, Trans North's Director of Operations, Ronald Schaberg undertook to assign the necessary crew members and flight for the mission. (TR 211:1-7). Mr. Schaberg creates his flight assignments by first ascertaining the amount of rest his pilots have in advance of the proposed assignment thenhe uses an internet based computerprogram !mown as Flightplan.com to create assignments that include all legs of the assignment (TR 213: 4-5). Flightplan.com



### 15

### allows Mr. 

### Schaberg to take into accmmt weather, weight and balance, alternate airports, fuel stops, etc. (TR213:4-10). Flightplan.comis listed in TransNorth's operations specifications as a legal source of flight assignment planning. (TR 213:8-10). Mr. 

### Schaberg had been using Flightplan.com to create flight assignments fur the past 3 years prior to the assignment in question. (TR 213:11-17). Mr. Schaberg did not file the any flight plans for the pilots. (TR 242:22-3). It

### was the custom and practice ofTrans North to require the assigned pilot file his or her

own flight plans with the appropriate FAA authority. (TR 242:13-21). In conjunction with the

use of Flightplan.com, Mr. 

### Schaberg used Trans North's internal manifests and duty logs to

assure himselfthatthe pilots thathe chose for the assignment had adequate pre-assignment rest. (TR 215:6-13). Utilizing Flightplan.com and his internal review of pilot rest periods, Mr. 

### Schaberg created an initial mission assignment and then contacted Trans North pilot, William Didier, to discuss the proposed assignment. (TR 215:6-13, 214:11-15). It 

### was the custom and practice of Mr. Schaberg and Trans North to provide the assigned pilot with the planned assignment verbally inperson or overthe telephone. (TR214:5-15). According to his internal pre-assignment review of the proposed assignment, Mr. 

### Schaberg determined that Mr. 

### Didier had adequate pre-assignment rest since Mr. 

### Didier had not flown a trip inthe prior five to seven days. (TR 215:14-20). Mr. 

### Schaberg created an initial mission assigmnent that was aborted due to mechanical difficulties encountered by the airplane assigned for the first leg of that assignment. (TR 222-223 :20-4). The affected aircraft then landed inCrawfordsville, Indiana and anew flight 

### assignmentwas createdbyMr. Schaberg. (TR 223-224:22-3).

16It 

### is this assignment that is the subject ofthis action and it is the assignment that should have been the focus ofthe FAA's investigation and position. The assignment pertinent to this

case called for Andrew Wolfto serve as pilot in conunand for the flight legs to be conducted under part 91 to Florida and Mr. Didier to fly the legs conducted under part 135 from Floridato Palwaukee Airportnear Chicago. (TR225:1-9). Mr. Schaberg's assignment considered that Mr. Didier had 10 112 hours of rest before going on duty for this mission. (TR 225:17-20). Consistent with Trans North's custom and practice, Mr. Schaberg informed Mr. 

### Didier ofthe planned assignment verbally and did not provide Mr. 

### Didier with any paperwork or F!ightplan.com data for the assignment. (TR 218:15-18). At the hearing of this matter, Mr. Schaberg presented a printout of the data that he obtained from his 

### Flightplan program that demonstrated the details of his assignment. In addition, Mr. 

### Schaberg superimposed his assignment upon a chart that the FAA inspector had created that demonstrated the actual flight times that were not part ofthe assignment. (TR 216-217:7-9). Mr. 

### Schaberg testified that the chart that had been created by the FAA inspector showed the actual flight but did not show the assignmentthathe createdfor the mission. (TR 217:3-9). The difference inthe assignment, the plannedflight, passenger pick up, fueling times and theplannedtime for the completionofthe assignment were demonstratedto be different thanthe actual flight times and actual completion of the assignment due to an unanticipated and unprecedented delay encountered in Florida. From a rest time and flight time perspective Mr. 

### Schaberg's plannedassigrnnent for Mr. 

### Didierwas as follows:

• Mr. 

### Didier would be on duty at 6:00 am and fly as a passenger from Indiana to West Palm Beach Florida. (TR 226- 227:20-1). • Mr. 

### Wolfwas assigned to be pilot in connnand for the part 91 leg to West Palm Beach Florida. (TR 227:1-3, 269:4-12, TR ll8:19-22)(See also Affidavit of Andrew Wolf dated 11-1-2012:

17

### "On November 27, 2011, I was assigned to fly our Chieftan N59773 from Indianato Florida". (Exhibit I). Mr. Didier, l\1r. 

### Wolf and Maynard Blodgett (the flight medic assigned to the mission) were supposed to meet the patient and the patient's wife at the Palm Beach airport at approximately 1:20 or 1:25 in the afremoon. (TR: 227:5-8). • The flight crew would then load the patient, make a quick turn and fly from West Palm Beach to Jessup Georgia for a fuel stop with Mr. 

### Didier serving as pilot in command for this part 135 flight. (TR 227:10-14). Theplanned assignment also assumed a 45 minute window for loading the passengers and fueling the aircraft in Palm Beach based on past experience for this part of the mission. (TR 229:8-9, 229:16-20). To keep the assignment legal and safe, the plan assigned Mr. 

### Didier as the pilotincommand onlyfor the part 135 legs from Floridato illinois so thathe would not exceed the eight hour flight within 24 hourrestriction. (TR 227-228:221-3). • From Jessup Georgia, Mr. 

### Didier would serve as pilot in conunand in the fmalleg ofthe trip to Chicago where the patient would be 

### unloaded and Mr. 

### Didier would go offduty at 7:30pm. (TR228:4-10). • The planned assignment assumed a 30 minute window for the fuel stop in

### Jessup based on past experience for this part ofthe mission. (TR 229:9-ll, 229: 16-20). Based on the planned assignment, Mr. Didier would be on duty at 6:00 am and complete the mission at 7:30 prn which, based on a 24 look back, would have provided Mr. 

### Didier with 

### lOY:, hours of pre-flight rest. (TR 228:18-2). At the hearing of this matter, Mr. 

### Schaberg produced a printout from Flightplan.com that recreated the assignment that he had verbally provided to Mr. Didier and Mr. 

### Wolf. The Flightplan.com printout verifies that the certificate holder, Trans North's, planned completion oftheassignment (final leg ofmission landing at 7:05 p.m.) satisfied the pre-flight rest requirements of 14 C.F.R. Section 135.267(d). In simple fashion, based on Mr. 

### Schaberg's unrefuted testimony and Flightplan.corn recreation the assignment plaru1ed by Mr. 

### Schaberg demonstrated that the assigned flight plan met the requirements of 14 C.F.R. Section 135.267(d).

18In Mr. Schaberg's opinion, the planned assignment that he constructed for Mr. Didier would comply with 14 CFR 

### § 135.267(d) respecting the 24 hour day and the required 10 hour restperiodprior to the dutyday. (TR 228:11-16). The FAA did not cross examine Mr. Schaberg

on his assignment, his accounting for pre-assignment rest for Mr. Didier, the scheduled completion ofthe planned assignment, or the reasonableness ofhis planned assignment. No one at the FAA ever asked Mr. Schaberg to explainhis planned flight assignment. (TR 142-143:1-6, 152-153:3-20). In addition, the FAA did not present any testimony from any ofits witnesses that could call into question Mr. Schaberg's assignment, his accounting for pre-assignment rest for Mr. Didier, the scheduledcompletionoftheplanned assignment, orthe reasonableness ofhisplanned assignment. The only testimony and evidence that the FAA offered at the hearing ofthis case concemed the actual flight and duty day timing not the planned assignment created by Mr. Schaberg and Trans North which is the only relevant inquiry in a case involving the alleged violationof14 CFR 

### § l35.267(d). Since thejudge found Mr. Schaberg's testimony bothtruthful and credible and since the FAApresented no evidence to dispel, contradict, impeach or in any way call into question Mr. Schaberg's testimony it is strains logic to arrive at the conclusion that the FAA wasjustified, or "substantially"justifiedinitspotioninthis case. TilE 

### FAA IGNORED OR DISREGARDED ITS OWN INTERPRETATIONS OF 

### 14 C.F.R. § 

### 135.267(D). In its "closing brief" the FAA disingenuously disregards the on-point FAA legal interpretation set forth in the Kidd Letter and instead cites a number ofF AA legal interpretation letters that concempart 121 and argues that 14 C.F.R. § l35.267(d) is somehowto be reviewed in conjunctionwith opinions thatinterpretthe dictates ofpart 121. The FAA evenwent so far as

19to cite a case brought by the Air Transport Association ofAmerica that has nothing to do with part 135 but does have a footnote related to flight time limitations not the analysis of flight assigmnent scheduling. Trans North is not a part 121 commercial carrier, therefore, part 121 does not apply to its operations or, more specifically, its planning offlight assignments. Part 121 has its own distinct and substantially different flight time andrest time calculationrules that only apply to "major scheduled air carriers" and other airlines operating large transport category airplanes" pursuant to part !21 certificates. Conversely, Section 135.267 applies to "any operation that is not a scheduled passenger-carrying operation

..."using a one ortwo-pilot crew.' See 14 C.F.R. §§ 135.26l(c) and 135.267. In this case, Trans North is accused ofviolating 14 C.F.R. § 135.267(d). (SeeExhibit 6). The regulation governing Part 121 operations is significantly different from 14 C.F.R. 

### § 135.267(d) rendering any analysis based on the Part 121 regulation in this case inapplicable. Unlike 14 C.F.R. 

### § 135.267{d) that addresses "the planned completion time the assigmnent" the Part 121 regulation, !4 C.F.R. § 121.47l(b) addresses "the scheduled completion time of any flight segment". Therefore, Part 121 breaks down a Part 121 certificate holder's flight assignment into separate segments and imposes a duty upon the certificate holder to look back for 24 hours before each flight segment to determine whether the pilot had sufficient rest. In stark contrast, the regulation at issuehere only requires thatthe certificate holderto lookback24 hours before the entire, non"segmented assigmnentto determine whether the pilot had sufficient rest. That is exactly whatMr. Schaberg did. Based onhis unrefutedtestimony, Trans North met the 14 C.F.R. 

### § 135.267(d) requirements. The trial Court erred ln this case by adopting the FAA'sdisjointed analysis of14 C.P.R. 

### § 135.267(d) and adopting anirrelevant analysis based on the aetna! flight times that were different from the relevant planned flight pre"assigmnent rest



### 20

### and planned assignment completiontimes. The entirety ofthe FAA's evidence andtestimony in this case was i!Televant since it only focused on the actual flight. Nowhere in 14 C.F.R. § 135.267(d) does the term "actual flight" appear and nowhere in 14 C.P.R. § l35.267(d) is there any reference to flight segments or any duty for the certificate holder to adjust a planned assignment based on unforeseen and unprecedented delays encountered in one particular segment ofthe assignment. 

### In tbis case, the FAA went to great lengths gather flight data, loadmanifests and create a chart that demonstrated the actual duty day and flight times for 

### Mr. Didier. However, none of that data and none ofthose charts had anything to do with Trans North's planned assignment. Granted, 

### it 

### was anice chart butit simply hadno relevance to the charged violation of 14 C.F.R. § 135.267(d). 

### In fact, until the day ofthe hearing the FAA had no clue what the actual planned flight assignment was and did not even attempt to perform a 24 hour look back based on Mr. Schaberg'splannedcompletiontime ofthe subject assigmnent.(TR 154: 1-22). Despite an investigation by a team ofFAA investigators and assnmed analysis by FAA attorneys, the FAA never sawfit to focus onthe real issues related to an alleged violation of 14 C.F.R. 

### § 135.267(d), never refuted the planned assignment, and never presented any evidence that would shed any negative light onthe realistic completiontime and scheduleplanned by Mr. Schaberg. Accordingly, the FAApresented absolutely no evidence ortestimony atthehearing of thjs case from which one could determine that the FAA wasjustified in its position that Trans N01ih violated 14 C.F.R. § 135.267(d) as alleged. Highly relevant to the analysis ofthe errors committed by the FAA and thejudge in this

case is the FAA's own interpretation of 14 C.F.R. 

### § 135.267(d). At the hearing ofthis case, Trans North's counsel offered into evidence an FAA Legal Interpretation letter from Assistant

21Chief Counsel, Rebecca B. MacPherson to Jason M. Kidd, dated November 13, 2012 (See Exhibit 21, hereinafter referred to as the "Kidd Letter") during cross-examination ofthe FAA Aviation Safety Inspector Sandra Boerman (TR. at Page 170). The Kidd Letter was written by the FAA's legal department, a department that makes policy for the FAA and dictates how FAR's and CFR's are to be interpreted by FAA employees such as Ms. Boerman. The Kidd Letter is a review and reaffirmation ofthe FAA's position onthe proper analysis of 14 C.F.R. 

### § 135.267(d) stemming from FAA legal interpretation letters dating back to 1992. (See Exhibit 21 at page 2 fn 4-7). The Kidd Letter is instructive in situations like the present one where an unanticipated delay ofone ofthe legs ofa scheduled flight assignment occurs thathas the effect of diminishing the rest period that was calculated based on the planned completion of an assignment. The factual scenario presented in this case shouldrender any argumentrespecting further interpretation orpractical application of 14 C.F.R. 

### § l35.267(d) moot. The issue presented inthe Kidd Letter was the effect ofan unanticipated delay on the certificate holder who devises flight assignment underpart 135. Thepertinent paragraphs ofthe Kidd Letter are as follows: For your next question, you pose the following scenario. A part 135 certificate holder operates unscheduled cargo and passenger operations pursuant to 14 C.P.R. § 135.267(d). That certificate holder schedules its flightcrew to be in rest from 2200z until O&OOz. The flightcrew is then scheduled to stmt a duty assignment that is supposed to begin at 0800z and end at 21OOz. The duty assignment consists of three flight segments, each of which is scheduledto be 3 hours long. The first flight segment is scheduled to depa.."t at0930z; the second segment is scheduled to depart at 1300z; and the final segment is**schedt~ed** to depart at 1800z. You 1llen list a number of delays that could happen during the flightcrew's assigned duty day. The delays specified inyour letter consist of: (1) late-arrivingpassengers or cargo; (2) en-route flight

22

### delays due to low visibility; (3) a diversion due to a mechanical failure; and (4) a delayedtakeoffclearance from air traffic control. Each of these delays would result in the flightcrew fmishing its duty day after 21OOz. You ask 

### whether these delays would result in the flightcrew violating the re requirement of § 

### 135.267(d) if

### that flightcrew finishes all three flight segments of its originallyscheduled duty day. Subsection 135.267(d) requires that an assignment "'must provide for at least 1 0 consecutive hours ofrest during the 24-hour period that precedes the planned completion time ofthe assigmnent." In a previous interpretation, the FAA emphasized that "[t]he key to the applicability of § 

### l35.267(d) is in the final phrase 'planned completion time of the assigmnent."' In 

### that interpretation, the FAA concluded that ifa crewmember is realistically scheduled to receive 10 hours ofrest in a 24-hour period, then "ifthe original planning is upset for reasons beyond the control ofthe [certificate holder], the flight may nevertheless be conducted, even though crew duty time mayextendbeyond 14 hours "in a 24-hourperiod. The FAA has previously stated that delays due to air traffic control, mechanical problems, or adverse weather could constitute circumstances that are beyond the control ofthe certificate holder. In 

### addition, the FAA has stated that delays due to late-arriving passengers or cargo could also constitute circumstances that are beyond the control of the certificate holder. Accordingly, the delays specified in your question (late-arrivingpassengers or cargo low visibility mechanical failure, and delayed takeoff clearance) could constitute circumstances that are beyond the control ofthe certificate holder that wouldpermitthe flightcrew to finish its duty day after the originaUy-planued 2100z completion time. However we emphasize that in order for the circumstances-beyond-thecontrol-of-the-certificate-holder doctrine to apply, the original 21 OOz completion time must have been realistically scheduled." (Exhibit 21 at p.2)(Footnotes omitted, emphasis supplied, italics in original). The Kidd Letter denotes the importance ofthe language of 14 C.F.R. 

### § 135.267(d) and highlights the FAA's long standingpositionthat: "TI1e key to the applicability of§ 135.267(d) is the final phrase 'planned completion time of the assigurnent." (Id.). I11e Kidd Letter is instructiveto certificate holders who create flight assigmnents as well as the FAA inspectors who analyze assigmnents that were deralled by unanticipated delays. Regardless of the delay, theKidd Letter emphasizes the original analysis that probes the original assignment as planned by the certificate holder. 

### It the event that, as in this case, a delay occurs that could not be reasonably foreseen by the certificate holder at the time when the flight assignment was conceived, the FAA takes the position that the certificate holder will not be subject to FAA action so long as the original planned flight assignment was realistically scheduled. 

### Inthis case the onlyevidence is thatMr. Schaberg's original flight assignmentwas realistically scheduled. The flight down to West Pahn Beach didnot experience any delays. (fR 230-231:20-3). Anunanticipated and unexpected delay was encountered bythe flight crewin WestPalm Beach. (TR23!:4-7). Mr. Schaberg was informedby someone inhis office thatthe flight was rnuning a little bit late because the ground ambulance that was carrying the passenger/patient got lost on the way to the airport. (TR231:10-15). Mr. Schabergwas notmade aware ofhowlongthe delay would be. (TR 231: 16-18). Based on Mr. Schaberg's 31 years of experience scheduling air ambulance transport ofpatients, ground ambulances are usually prompt in delivering patientsto aircraft and arenotoftenlate bymorethan 30 minutes. (TR 231-232:19-16). Based onhis 31 years ofexperience, Mr. Schaberg believes that an extended delay ofthe ground ambulance's delivery of a patient is an unforeseeable circumstance. (TR 232:14-19). Based on his years ofexperience and upon the particular circumstances involved, Mr. Schaberg didnot believe thatru1y significantdelaywould occur. The initial planned mission, thathad to be aborted due to mechanical difficulties, was scheduled to load the patient at 9:30 am central time (TR 220:8-22). When the pickup time for the patient was changed fi·om the morning to the afternoon due to the mechanical difficulties, Mr. Schaberg expected a tight schedule since the critically 

### illpatientand his wife were getting rulXious about begiuning their trip to Chicago. (TR 232-233:21-9). It stands to reason also that a ground ambulance that had been previonsly

24

### scheduled to bring the patient to the airport some four hours earlier would not be late especially whenthe grave condition ofthe patientis considered. As it tumed out, the ground ambulance was delayed for 3 hours. (TR 237:11-14). 

### Mr. Schaberg did not discover the extent ofthe delay until the next day. (TR 237:7-10, 245:16-18). Accordingto the Trans North operations manual, a pilotwho experiences a delayinexcess of30 minutes ofthe scheduled departure time must contact the director ofoperations, 

### Mr. Schaberg. (TR248:14-18). Neither ofthe pilots contacted 

### Mr. Schaberg about any delays ofthe scheduled departure fromWest PalmBeach. (TR249:2-4). So 

### Mr. Schaberg could not !mowthe nature or extentofthe pilot'sdeviationfromthe assignmentprovidedtothose pilotsby 

### Mr. Schaberg. But for the unanticipated and unforeseen and unprecedented ground ambulance delay that

was not !mown by Mr. Schaberg atthe time thathe devised the pilot assignments, the assignment would have been completed in conformance with 14 CFR § 135.267(d) 

### in terms ofthepre-flight rest period attributed to 

### Mr. Didier. (TR 237-238:20-2). 

### The unanticipated ground ambulance delay that was unknown to Mr. Schaberg at the time that he set up the assignment caused the pilots and crew to deviate from the planned completion ofthe assignment. (TR 238:3-6). 

### Mr. Schaberg's assignment provided for lOY, 

### honrs ofrest for Mr. Didier during the 24 hours that preceded the planned completion of the assignment. (TR 239-240:22-5). 

### Due to the ground ambulance delay that was notknown and could not be foreseen by 

### Mr. Schaberg atthe time that he devisedthe flight assignments, the flights to Chicago were delayed approximately 3hours and the pre-flight rest time based on a 24 hour look back was 7.3 hours. (TR 239:5-21). The 7.3 hours ofrest was based upon the times and delays encountered bythe flight crew and was not part ofthe planned assignment issuedby Mr. Schaberg. (TR 239:16-21).



### 25The unanticipated delay encountered by Mr. Didier does nothing to change the fact that Trans North's the flight assignment was realistically scheduled and by applying the Kidd Letter to the facts ofthis case would allow a relaxation ofthe duty time and rest time provisions of 

### 14 

### C.F.R. § l35.267(d). Unlikejudicial cases and rulings and orders from the NTSB that can be interpreted in various fashions and used to bolster or degrade legal arguments, these interpretation letters come from the highest level ofthe FAA legal department and are drafted to define and solidifythe FAA'spositionona variety ofissues. The fact is that the Kidd Letter squarely addresses the situation that Mr. Didier found himselfin by addressing a multiple leg assignment and an unanticipated delay based upon late arriving passengers. When Mr. Schaberg created the original flight assignment, he realistically scheduledthe assignmentby splittingthepilotassigmnentsbasedonthe Part91 legs and the Part 135 legs, allowing appropriate time for passenger loading and fuel stops andrelying on his years ofexperience in assuming that an ambulance thatis carrying a critically ill passenger would not be late. The FAA's investigator, Ms. Boerman admitted under oath that the late arrival ofthe patient was an unforeseeable event. (TR 159:4-8). Based on the Kidd Letter, the delay that admittedly constituted circumstances beyond the control ofthe certificate holder would mean thatthe "flightmay nevertheless be conducted, even though crew duty time may extend beyond 

### 14 hour in a 24 hourperiod" (Exhibit 4) Based onthe pre-flight rest context ofthe Kidd Letter the reference to the extension ofthe duty day is obviously based on the fact that assuming a 14 hour duty day, 10 hours ofrest must precede that duty day. The FAA's construction ofits own regulations as set forth in the Kidd Letter should be given due deference in this case. United States v. OzarkAirLines, Inc., 419 F.Supp. 795,798 (E.D.Mo.l976). TheFAA andthejudgein

26this case failed to give due deference to the FAA's longstandinglegal interpretations concerning 14 C.F.R. 

### § l35.267(d) andwere not substantiallyjustifiedtheir positions inthis case. TheFAA andthetrialjudgeknewofthe Kidd Letter, knewofthe language of 14 C.F.R 

### § 135.267(d) and knew orshouldhaveknownthat the focus ofthe FAA'sprimafacie case rested securely not onthe actual flight butonthe scheduledflight assignment and the24 hom look back based on the planned completion ofthe assignment. However, the FAA failed to present any evidence in 

### its case in chiefthat would support a prima facie case ofviolation of 14 C.F.R. 

### § 135.267(d) and thejudgeerred in determining that Trans Northviolated 14 C.F.R. 

### § 135.267(d), that Trans North presentedno evidence in mitigation (the ground ambulance delay) and that the FAAestablished its primafade case by a prepondera11ce ofthe evidence. Ms. Boerman never sought out the reasons for the departure delay that occurred in West Palm Beach because she thought "it doesn't matter". (TR 155:11-20). Ms. Boerman admitted that Trans North could not foresee that the patient would be late and that this was an unforeseeable event. (158-159:21-8). 

### In her testimony, Ms. Boerman indicates that the violations were associated withthepilots' decisionsto continuethemission: A. What I testified was that it wasn't foreseen beyond their control. They couldn'tforesee thatthe patient was goingto be late, butthey could control iftheir flight was to depart ornot. Q Okay. So, you would agree though that this was a unforeseeable event, correct? 

### A Yes. Q The late arrival ofthe patient? 

### A Yes. Q And you would agree also that the condition ofthe patientwould be somethingthat would be considered inwhether or notto continue on withthe assignment, wouldn't it? I mean, letme rephrase that. 

### In this 

### case, the delay that occurred in West Palm Beachwas due to 

### apatient lateto getto theplane, correct? A Yes. Q And the condition ofthat patient may be a factor in wheilHor ornotto continue onwiththe flight ornot, wouldn't

### it?

27A As a pilot, I wouldn't, the passenger or the patient wouldn'tbe a determination

### ifthe flight should go ornot. Q Okay. In this instance, did you know whether or notthis was 

### acriticallyillpatient? A I don'tknow. I do notknow. Q Okay. Would that be a factor that would be reasonably considered by the pilot as to whether or not he or she should continue on with his flight assignment provided by the cetiificateholder? A Are you askingme ifa critical patient shouldfly? Q I'm asking you whether or not the pilot is reasonably considering the condition ofthe patient in determining whether or not he should continue on 'vith the flight plan that was designated bythe certificateholderfrom the beginning? A I don't think a pilot should worry about their passengers to determine ifthey should go on a flight. They should worry about weather, time onduty, fuel, all that kind ofstuff, not a passenger. 

### Q Okay. So, inthis case, assuminghypothetically that this patient was an 80 year old gentleman who was critically 

### ill withheartproblems and was inneed ofintravenous fluids and pain medications and was already delayed three hours getting to the aircraft that's something that you don't think is reasonable to be considered by the pilot in determining whether or not to continue onwith hisjourneynorth? A Myopinion 

### ifa patientwho isthat critical shouldbe staying on the ground at a hospital, not in an airplane. (TR 158- 161:21-14). This testimonyfurther establishesjusthow far offthe FAA's position was. The FAA did not apply the right regulation nor did it apply the right interpretation ofits regulation from the beginningto the end ofthis unfortunate litigation. The standard for our review in this case is clear. In order to find that the Administrator

was substantiallyjustified, the Administratorbears the burden ofdemonstrating that his position

was reasonable both in fact and in law, i.e., the legal theory propounded is reasonable, the facts alleged have a reasonable basis in truth, and the facts alleged will reasonably support the legal theory."Application ofUS Jet, NTSB OrderNo. EA-3817 at2 (1993), citations omitted.

28Inthis case, neitherthe pre-litigationnor the litigationpositions ofthe FAA demonstrate that the FAA was substantiallyjustifiedinproceeding against Trans North. The FAAbears the burden of demonstrating substantial justification. Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (order). '"Substantialjustification' in this contextmeans 'justificationto a degree that could satisfY a reasonable person,' Pierce v. Underwood, 487 U.S. 552, 565 (1988)." AlHarbi v. 

### INS, 284 F.3d 

### I080, 

### l084 (9tb Cir. 2002) (order); see also Meier v. Colvin, 727 F.3d 867, 870-72 (9thCir. 2013) (social securitycase). The courthas "interpretedtbe term substantial justification as describing a position thathas a reasonable basis both in law and fact." Renee v. Duncan, 686 F.3d 1002, 1017 (9th Cir. 2012) (internal quotation marks, alterations, and citation omitted). lftbe FAA's pre-litigation conduct and the position it took as a result ofthat conduct is not deemed to be substantiallyjustified, then the FAA has failed to cany its burden and this tribunal need not consider ifthe FAA's position dming litigation and hearing was substantially justified. Anthony v. Sullivan, 982 F.2d 586, 589 (D.C.Cir. 1993) (finding tbat "once a court determines that the government's position on the merits of tbe litigation is not substantially justified, itmay not revisitthat question as to any component ofthe dispute."). The FAA inthis

case was not substantiallyjustified at anytumin this case. The NTSB has determined andrecognized that the BAJA's substantialjustification test is less rigorous thanthe Administrator's burden ofproofwhen arguing the merits ofthe underlying complaint. Application ofU.S. Jet. Inc., NTSB Order No. EA-3817 at note 9 (1993) (citing Administrator v. Pando, NTSB Order No. EA-2868 (1989)). Accordingly this tribunal must engage in an independent evaluation ofthe circumstances that lead up to tbe Administrator's original complaint and determine whether the Administrator was substantially justified in pursuing the case based on those circumstances. See, Federal Election Commission v. Rose, 806

29F.2d 1081, 1087 (D.C. Cir. 1986). (holdingthatthe merits phase ofa case is separate and distinct from theEAJA phase ofthe case). Asthe above facts and argument demonstrate an independent evaluation should only lead to the conclusionthattheFAAwas not substantiallyjustified. Unlike many EAJA cases, this case does notturn onthe credibility ofthe witnesses or on the weightgiven to certainexhibits or evidence. Rather, this case involves a very straightforward analysis of the language of 14 CFR 

### § 135.267(d) and the FAA's own interpretation letters penned by its Office of General Counsel that provide clear direction on how the FAA should have investigated this case. Based upon interpretation of 14 CFR § 135.267(d) and the FAA's

own interpretation letters, the FAA shouldhave ended its investigation in sunnnary fashion. The FAA's position appears to have been based on an entirely different regulation. Once that regulation was in the collective mind of the FAA, its investigators and attorneys they just wouldn't let go. The square peg simply won't 

### fit into the round hole of 14 CFR § 135.267(d). This further demonstrates that the FAA was not only unjustified in bring the case as to the facts buttothe applicable lawas welL ALLOWANCE FEES AND EXPENSES PURSUANT TO 14C.F.R. 

### § 14.05•. Pursuant to 14 C.F.R. 

### § 14.05, having demonstrated that 

### it is the prevailing party in the underlying matter and since the FAA cannot meet its burden ofshowing that its position was substantiallyjustified, Trans North is entitled to the attorneys fess expended in defending the

case and to the reasonable expenses ofthe attorneys who defended Trans North. Pursuant to 14 C.F.R 

### § 14.12, Trans North attaches as Exhibit 22 full documentation of the attorneys fees incurred in an itemized statement submitted by Trans North's counsel, Barnett & Borth, LLC, that details the hours spent in connection with the proceedings by each attorney for the finn, a description ofthe specific services performed, the rate at which each fee has been computed.



### 30(See Exhibit 22). Trans North attaches an itemization ofexpenses incurred by Trans North's attorneys, Barnett & Borth. LLC, in defending Trans North in this matter (See Exhibit 23) and the calculationoffees and expenses. (See Exhibit 24). CONCLUSION: The Equal Access to Justice Act, 5 U.S.C. 504 and 14 C.:F.R. § 14.01, provides for the award ofattorney fees and other expenses to eligible individuals and entities who are pmties to certain administrative proceedings (adversary adjudications) before the Federal Aviation Administration (FAA). An eligible party may receive an award when 

### it prevails overthe FAA, unless the agency's position in the proceeding was substantially justified or special circumstances make anaward unjust. Inthis case, the FAAcannot showthatitwas substantially justifiednorthatthere are any special circumstancesthatwouldmakethe award ofattorneys fees and expenses to Trans North unjust. The FAA failed to present any evidence in its case in chief that wonld support a prima facie case ofviolation of 14 C.F.R. § I35.267(d) and failed tojustify its positionat any stage ofthis case. 

### WHEREFORE, Trans No!th's application shouldbe granted and the FAA should be orderedto payto the Applicant,TransNorththe amount of$ 38,323.89, the amountrequested in this application.

Paul R. Borth Attorney for Applicant, Trans North Barnett & Borth, LLC 800 Waukegan Suite200 Glenview, IL 60025 (847) 724-5520 Dated: December26, 2014

31U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. IN THEMATTEROF TRANS NORTHAVIATION, LTD FAADOCKETNO. (2012-GL-03-0012) FDMS NO. (FAA-2013-0046) (CivilPenaltyAction- Judge Richard C. Goodwin)



### AMENDED CERTIFICATE OF SERVICE The undersigned certifies thatthe foregoing Equal Access to Justice Act Application ofTrans NorthAviation, Ltd. was servedviaFederal Express as follows: ORIGINAL and ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing DocketClerk, AGC-430 Wilbur Wright Building-Suite 2Wl000 ONE COPY TheHonorable Richard C. Goodwin, Administrative LawJudge Office ofHearings, M-20 1200 NewJerseyAvenue, S.E. East Building Ground Floor Room E12-320 Washington, DC 20590 ONE COPY (Previously Served onDecember26, 2014) JessicaE. Kabaz-Gomez Enforcement DivisionAGC-300 Office ofthe ChiefCounsel Federal AviationAdministration 800 Independence Avenue, SW Washington, DC 20591 FAX (202) 267-5106

P c.t../**~/** 7



### a . ltll ,/ / Attorney

### ~Applican(