SERVED DECEMBER 2~, 2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

TRANS NORTH AVIATION, LTD 

FAA DOCKET NO. (2012-GL-03-0012) 

FDMS NO. (FAA-2013-0046) 

(Civil Penalty Action- Judge Richard C. Goodwin) 

FiECEIVED 

JAN 0 9 2015 

HEARING DOCKET 

,:JOIY- I IIi· 

APPLICATIUNFORANAWARDOFATTORNEYFEESANDOTIIEREXPENSES 

PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT 

NOW COMES the Applicant, TRANS NORTH AVIATION, LTD., (herein "Trans 

North") by and through its counsel, BARNETT & BORTH, LLC., and pursuant to 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 in The Matter of Trans 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 may have assigned a flight crewmember to a duty that 

exceeded their flight 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 of dispatch 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 we 
will be happy to assist you." (See Exhibit 2). Subsequent to Trans North's response, the FAA did 

not request any further information respecting Trans North flight assignment. On December 22, 

2011, the FAA sent Trans North a letter of investigation requesting information regarding fuel 

policies and records of disciplinary actions of the pilots. (See Exhibit 3) 

On January 13, 2012, Trans North's attorneys filed Trans North's response to the 

December 22, 2011 letter of investigation 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 of the July 12, 2012 Notice that alleges that: "Trans North assigned Mr. Didier as 

Pilot-in-Command of the flight on November 28, 2011, which did not provide for at least 10 

consecutive hours of rest during the 24-hom period that preceded the planned completion time of 

the flight assignment." (See Exhibit 5 at p.2 4f 6). 

On January 15, 2013 FAA attorney Adrianne Wojcik served Trans North with a Final 

Notice of Proposed Civil Penalty alleging that Trans North violated 14 CPR §135.267 (d). (See 

Exhibit 6). Again the FAA alleged that: "Trans North assigned Mr. Didier as Pilot-in-Command 

of the flight on November 28, 2011, which did not provide 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 At the close ofthe evidence in the hearing, Judge Goodwin allowed the FAA to file a post-hearing brief based on 

the FAA's representation that the Kidd Interpretation Letter that was used by Respondent's counsel for cross 

examination of the FAA's witnesses was not an accurate statement of the law. 

2 
failed to cite one case or one legal interpretation letter that cotmtered the Kidd interpretation 

letter. Instead the FAA relied on cases and interpretation letters that concern part 121 operations. 

Respondent moved to strike the brief on that basis that it went far 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 brief citing 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 

withdraw the Judge's order assessing the civil penalty against Trans North. (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 application is timely and appropriate in accordance with 14 C.F.R. §14.20(a) as 

it is filed no later than 30 days after the fmal disposition of the proceedings, the decision maker's 

final disposition of the proceedings. 

TRANS NORTH Is THE PREVAILING PARTY. 

The test for determination of prevailing party status is set forth in the case of District 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' of the parties; (2) the judgment must be in favor of the party 

seeking the fees; and (3) the judicial pronotmcement must be accompanied by judicial relief."). 

3 
Subsequent to that decision the NTSB addressed we discussed the test, in dicta, in Administrator 

v. Koch. NTSB Order No. EA-5571 at 7 (2011). In the recent case of Application of Bordelon. 

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 of Bordelon, NTSB Order No. EA-560l(October 

24, 2011). 

ill Bordelon, the Administrator issued an emergency order seeking revocation of the 

applicant's mechanic certificate with A&P ratings 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 law judge set a hearing for the case and discovery 

ensued. I d. The applicant's deposition testimony convinced the FAA counsel that the 

procedures performed did not amount to violations of the CFR as previously alleged. As a 

result, the Administrator moved to withdraw the complaint, without prejudice. Id. The 

Applicant then filed a motion to tenninate the proceedings with prejudice the following day. Id. 

The law judge then granted the withdrawal of the complaint with prejudice. ld. The Board held 

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 of applicant. Bordelon, at p. 11. 

4 
The present case satisfies the three part Strauss test since there was (1) be a 'courtordered change in the legal relationship' of the parties; (2) the judgment was in favor of Trans 

North; and (3) the judicial pronouncement was accompanied by judicial relief in the form of a 

dismissal with prejudice precluding the FAA from seeking any further sanction or penalty on the 

facts of this case. According to Straus, a party need receive only some form of judicial relief, not 

necessarily a court-ordered consent decree or a judgment on the merits. See, Carbonell v. INS, 

429 F.3d 894, 899 (9th Cir.2005) (collecting cases from the "vast majority" of circuits holding 

prevailing party status not so limited); see also, e.g., District of Columbia 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 of preliminary :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 

prevailing party). 

In this case the dismissal with prejudice was not only requested by the applicant but was 

consented to by the FAA. This is not a case in which there is any question that the dismissal was 

with prejudice and, therefore, forever changed the legal relationship of the parties. The FAA 

finally saw the light when its senior attorneys reviewed the case and read Trans North's appeal 

brief that set forth all of the reasons why the case should not have been brought in the rust place. 

In advance of that revelation, the case had gone through protracted litigation and a hearing on 

"the merits". 

A case that should carry significant weight in reviewing the present application is Green 

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

5 
Court of Appeals for the District of Columbia Circuit reviewed a case that involved many of the 

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 not the Administrator's filing of the complaint was substantially justified. 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 of facts because the dismissal with prejudice has res 

judicata effect Id. at 204-205. This is exactly where Trans North finds itself in 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 of the 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 at 457 (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; if it were 

6 
not, 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 

substantively meaningful rather than insignificant effect, cf. Corley 

v. United Slates, 129 S. Ct. 1558, 1566 (2009). Green at 205. 

On the issue of the e:!'.fuct of the dismissal with prejudice when viewed in light of the 

purposes behind the EAJA and the application of the 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 of the BAJA, which is 

to prevent defendants from "be[ing] deterred from seeking review 

of or defending against unreasonable governmental action because 

of the expense involved." H.R. CONF. REP. NO. 96- 1434, at 21 

(1980), reprinted in 1980 U.S.C.C.A.N. 5003,5010 (1980). Green, 

at 205. 

The established jurisprudence on the determination of prevailing party status in on all 

fours with the facts of this case. As a practical matter, this is not a case in which the FAA 

conducted an investigation and upon dete~mining that the facts of the 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 law judge 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 of the history of this case simply makes no sense. Accordingly, Trans 

North should be deemed the prevailing party in this case. 

TRANS NORTH MEETS THE ELIGIBILITY REQUIREMENTS OF THE EAJA 

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The EAJA at 14 C.F.R. § 14.03 sets forth the eligibility requirements ofEAJA applicants. 

Specifically pertinent to this application is, 14 C.F.R. § 14.03 (b)(5) which states: 

(5) Any other partnership, corporation, association, or public or 

p1ivate organization wiJh a net worth of not 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). 

At the time of the adversary adjudication ofthis matter, Trans North was a corporation in 

good stand organized under the laws of Wisconsin. (See Exhibit 13). Trans North attaches to 

this Application the Affidavit of Trans North's director of operations 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 of the 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 of EAJA applicants. 

THE FAA's POSITION FAILED TO PROPERLY AI'I'LY 14 C.F.R. SECTION 1J5.267(D) 

AND WAS, THEREFORE, NoT PROPERLY JUSTIFIED. 

The analysis respecting the question of substantial justification center upon both the 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 of this 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 of Trans North's assigmnent 

of the 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 

justified in this from investigation through appeal. 

Trans North was accused of violating 14 C.F.R. Section 135.267(d) alone. (See Exhibit 

6) , Final Notice of Proposed 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) concerning the total flight time of the assigned flight . In addition, 

there are no allegations that the pilots involved violated any regulation. The only alleged 

violation concerns the certificate holder, 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 or not. To begin, the only regulation at issue in this 

case states as foilows: 

§ 135.267 Flight time limitations and rest requirements: 

(d) Each assignment under paragraph (b) of this section must 

provide for at least 10 consecutive hours of rest 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 of rest in the 24 hour period that preceded the planned completion time of the 

assignment. The final step in the analysis concerns unforeseeable delays that serve as 

9 
circumstances beyond the control of the certificate holder, Trans North and can serve as 

exceptions to the pre-assignment rest requirements 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 of this matter, the FAA paid 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 when the only focus in a case involving 

14 C.F.R. § l35.267(d) should be upon the certificate holder's planned assigument and the 

calculation of the 10 hour rest period based on the planned completion time of the assigument. 

FAA INSPECTOR SANDRA BOERMAN'S "!NVESTIGA TION" ON FLIGHT AsSIGNMENT: 

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 of the 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 of Trans North's assistant chief pilot Quentin Levitte she wrote: "There is 

no written documentation of the assignment[,] just verbal." (See Exhibit 16). Ms. Boerman 

confirmed the Trans North company policy that the assigument coming from Mr. Schaberg to the 

pilots was verbal and that she was not able to find any flight assignment or planning documents 

that were generated by Trans north or Mr. Schaberg during her investigation. (TR 130:16-19). 

In her December 7, 2011 interviews of FO Andrew Wolf and t1ight paramedic, Maynard 

Blodgett, Ms. Boerman did not pose any questions on the subject of the flight assigument. (See 

Exhibits 17 and 18). Ms. Boerman interviewed Mr. Schaberg, Mr. Blodgett and Mr. Wolf in 

10 
person 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 of the assignment. (TR 74:3-!4). 

From the load manifests and the fligbt plans filed by the pilots, Ms. Boerman determined 

that when Mr. Didier took off from Jessup Georgia he only had one hour of his duty day left and 

that he could not complete the 3 hour and 25 minute flight to Chicago without violating his rest 

period requirements. (TR 83:5-14). This had nothing to do with the flight assignment issued by 

Trans North. Mr. Boerman testified that in arriving at that conclusion she had no documentation 

concerning Trans North or Mr. Schaberg's assignment of the flights. (TR 84-85:20-2). She 

testified that "It's all about planning" (TR 84:20). 

However, Mr. Boerman never ascertained what the planned fligbt assignment actually 

was or how it was planned by Mr. Schaberg. The IFR flight plans that Ms. Boerman referred to 

in her investigation came from Flight A ware and demonstrated that all IFR flight 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 of flight 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. 

Wolf informed her that Mr. Schaberg had assigned him to fly the part 91 flights from Indiana to 

Florida. (TR 118:1 9-22). 

Affidavits executed by both Mr. Schaberg and Mr. Wolf also verified this early on in the 

investigation phase of this case. (See Exhibits 17 and 18). Mr. Schaberg's affidavit also set 

forth a portion of his planned t1ight assignment by averring to how he had assigned the two pilots 

11 
(Didier and Wolf) to fly separate segments of the assignment. (See Exhibit 19). Placing these 

statements in context, the planned assignment allowed for appropriate pre-assigrnnent rest. 

Ms. Boerman testified that none of the documents that she reviewed indicated that there 

had been any departure delays. (TR 130:3-9). Ms. Boerman confirmed the Trans Nmth company 

policy that the 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 the patient arriving late. (TR 134-

135:17-3). Ms. Boerman did not consider the late arrival of the 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 testified that other than the rudimentary conversation that she had with 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). According to Ms. Boerman, the local FSDO, the regional oftlce and 

the FAA counsel were all involved in her investigation but, to her knowledge, 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. Boerman testified that neither in the FAA's letter of investigation nor anywhere else 

did she or the FAA request any infonnation of documentation concerning Mr. Schaberg's 

planning of the flight assignments that preceded the subject flights. (TR 142-143:1-6). Based on 

12 
the 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 of the planned assignment. Ms. Boerman agreed that 

part of her duties were to interview witnesses, but that even though none of the witnesses that she 

interviewed knew the specifics of Mr. Schaberg's assignment of flights and his planning of those 

t1ights, she did not interview Mr. Schaberg any further to determine what he considered when he 

constructed the flight assignment that is the subject of this action. (TR 152-153:3-20). 

Q: As you sit here today, you do not know what Ron's 

[Schaberg] flight plan was for Didier and Wolffor the trip down to 

West Palm Beach and back up 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: Notthat I recall. (TR 154: 1-22). 

FAA INSPECTOR .JOHN MERRILL'S "INVESTIGATION" ON FLIGHT AsSIGNMENT: 

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 chief pilot 

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. Wolf was assigned by Mr. Schaberg as pilot in command to 

fly the replacement aircraft from Indiana to West Palm Beach. (TR 23-24: 18-13). 

Mr. Merrill testified that he did not perform any investigation about this accident but did 

complete an FAA inspector's report to document the conversations that he had with Trans 

North's Chief Pilot and Trans North's Director of Operations, Mr. Schaberg. (TR 46-47:22-9). 

Mr. Merrill did not ask Mr. Schaberg any questions concerning Mr. Schaberg's assignment of 

l3 
the 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. Menill testified that 14 CFR § 135.267(d) requires at least 

ten hours of rest in the 24 hour period that precedes the planned completion of the assignment. 

(TR 54:1-4). Mr. Memll testified that if Mr. 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). 

TRANS NORTH'S EVIDENCE OF THE FUGIIT ASSIGNMENT: 

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 was judicially 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 of tl1e assignn1ent Mr. Didier 

had more than l 0 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. 

14 
Respondent, 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 of his airway. On November 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 then he uses an internet based computer program !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. (TR 213:4-1 0). Flightplan.com is listed in Trans North'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 of Trans 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 himself that the pilots that he 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 in person or over the telephone. (TR 214:5-15). 

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 in the 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 in Crawfordsville, Indiana and a new flight assignment was created by Mr. Schaberg. (TR 

223-224:22-3). 

16 
It is this assignment that is the subject of this action and it is the assignment that should 

have been the focus of the FAA's investigation and position. The assignment pertinent to this 

case called for Andrew Wolf to 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 Florida to 

Palwaukee Airport near Chicago. (TR 225:1-9). 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 of the 

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 of the 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 

assignment that he created for the mission. (TR 217:3-9). 

The difference in the assignment, the planned flight, passenger pick up, fueling times and 

the planned time for the completion of the assignment were demonstrated to be different than the 

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 planned assigrnnent for Mr. Didier was 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. Wolf was 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 Indiana to 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). The planned 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 pilot in command only for the part 135 legs from 

Florida to illinois so that he would not exceed the eight hour flight 

within 24 hour restriction. (TR 227-228:221-3). 

• From Jessup Georgia, Mr. Didier would serve as pilot in 

conunand in the fmalleg of the trip to Chicago where the patient 

would be unloaded and Mr. Didier would go off duty at 7:30pm. 

(TR 228:4-10). 

• The planned assignment assumed a 30 minute window for 

the fuel stop in Jessup based on past experience for this part of the 

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 ofthe assignment (final leg of mission 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). 

18 
In 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 

rest period prior to the duty day. (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 of the planned assignment, or the reasonableness of his planned assignment. No one 

at the FAA ever asked Mr. Schaberg to explain his planned flight assignment. (TR 142-143:1-6, 

152-153:3-20). 

In addition, the FAA did not present any testimony from any of its witnesses that could 

call into question Mr. Schaberg's assignment, his accounting for pre-assignment rest for Mr. 

Didier, the scheduled completion of the planned assignment, or the reasonableness ofhis planned 

assignment. The only testimony and evidence that the FAA offered at the hearing of this 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 

violation of14 CFR § l35.267(d). 

Since the judge found Mr. Schaberg's testimony both truthful and credible and since the 

FAA presented 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 was justified, or 

"substantially" justified in its potion in this 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 concem part 121 and argues that 14 C.F.R. § l35.267(d) is somehow to be reviewed 

in conjunction with opinions that interpret the dictates of part 121. The FAA even went so far as 

19 
to cite a case brought by the Air Transport Association of America that has nothing to do with 

part 13 5 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 of flight assignments. Part 121 

has its own distinct and substantially different flight time and rest time calculation rules 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 or two-pilot crew.' 

See 14 C.F.R. §§ 135.26l(c) and 135.267. In this case, Trans North is accused of violating 14 

C.F.R. § 135.267(d). (See Exhibit 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 issue here only requires that the certificate holder to look back 24 

hours before the entire, non"segmented assigmnent to determine whether the pilot had sufficient 

rest. That is exactly what Mr. Schaberg did. Based on his unrefuted testimony, Trans North met 

the 14 C.F.R. § 135.267(d) requirements. The trial Court erred ln this case by adopting the 

FAA's disjointed analysis of 14 C.P.R. § 135.267(d) and adopting an irrelevant analysis based on 

the aetna! flight times that were different from the relevant planned flight pre"assigmnent rest 

20 
and planned assignment completion times. The entirety of the FAA's evidence and testimony 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 of the assignment. 

In tbis case, the FAA went to great lengths gather flight data, load manifests and create a 

chart that demonstrated the actual duty day and flight times for Mr. Didier. However, none of 

that data and none of those charts had anything to do with Trans North's planned assignment. 

Granted, it was a nice chart but it simply had no relevance to the charged violation of 14 C.F.R. § 

135.267(d). In fact, until the day of the 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's planned completion time of the subject assigmnent.(TR 154: 1-22). 

Despite an investigation by a team ofF AA investigators and assnmed analysis by FAA 

attorneys, the FAA never saw fit to focus on the 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 on the realistic completion time and schedule planned by Mr. 

Schaberg. Accordingly, the FAA presented absolutely no evidence or testimony at the hearing of 

thjs case from which one could determine that the FAA was justified in its position that Trans 

N01ih violated 14 C.F.R. § 135.267(d) as alleged. 

Highly relevant to the analysis of the errors committed by the FAA and the judge in this 

case is the FAA's own interpretation of 14 C.F.R. § 135.267(d). At the hearing of this case, 

Trans North's counsel offered into evidence an FAA Legal Interpretation letter from Assistant 

21 
Chief 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 of the 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 of the FAA's position on the 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 of one of the legs of a scheduled flight assignment occurs that has 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 should render any argument respecting further 

interpretation or practical application of 14 C.F.R. § l35.267(d) moot. The issue presented in the 

Kidd Letter was the effect of an unanticipated delay on the certificate holder who devises flight 

assignment under part 135. The pertinent paragraphs of the 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 21 OOz. The duty 

assignment consists of three flight segments, each of which is 

scheduled to be 3 hours long. 

The first flight segment is scheduled to depa.."t at 0930z; 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 in your letter 

consist of: (1) late-arriving passengers or cargo; (2) en-route flight 

22 
delays due to low visibility; (3) a diversion due to a mechanical 

failure; and (4) a delayed takeoff clearance from air traffic control. 

Each of these delays would result in the flightcrew fmishing its 

duty day after 21 OOz. You ask whether these delays would result in 

the flightcrew violating the re requirement of § 13 5 .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 of rest during the 24-hour period 

that precedes the planned completion time of the 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 if a crewmember is realistically scheduled to 

receive 10 hours of rest in a 24-hour period, then "if the original 

planning is upset for reasons beyond the control of the [certificate 

holder], the flight may nevertheless be conducted, even though 

crew duty time may extend beyond 14 hours "in a 24-hour period. 

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 of the 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-arriving passengers or cargo 

low visibility mechanical failure, and delayed takeoff clearance) 

could constitute circumstances that are beyond the control of the 

certificate holder that would permit the 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 of the language of 14 C.F.R. § 135.267(d) and 

highlights the FAA's long standing position that: "TI1e key to the applicability of§ 135.267(d) is 

the final phrase 'planned completion time of the assigurnent." (Id.). I11e Kidd Letter is 

instructive to 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, the 
Kidd 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. In this case 

the only evidence is that Mr. Schaberg's original flight assignment was realistically scheduled. 

The flight down to West Pahn Beach did not experience any delays. (fR 230-231:20-3). 

An unanticipated and unexpected delay was encountered by the flight crew in West Palm Beach. 

(TR 23! :4-7). Mr. Schaberg was informed by someone in his office that the 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. (TR 231:10-15). Mr. Schaberg was not made aware of how long the delay 

would be. (TR 231: 16-18). Based on Mr. Schaberg's 31 years of experience scheduling air 

ambulance transport of patients, ground ambulances are usually prompt in delivering patients to 

aircraft and are not often late by more than 30 minutes. (TR 231-232:19-16). 

Based on his 31 years of experience, Mr. Schaberg believes that an extended delay of the 

ground ambulance's delivery of a patient is an unforeseeable circumstance. (TR 232:14-19). 

Based on his years of experience and upon the particular circumstances involved, Mr. Schaberg 

did not believe that ru1y significant delay would occur. The initial planned mission, that had 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 ill patient and 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 

when the grave condition of the patient is considered. 

As it tumed out, the ground ambulance was delayed for 3 hours. (TR 237:11-14). Mr. 

Schaberg did not discover the extent of the delay until the next day. (TR 237:7-10, 245:16-18). 

According to the Trans North operations manual, a pilot who experiences a delay in excess of 30 

minutes of the scheduled departure time must contact the director of operations, Mr. Schaberg. 

(TR 248:14-18). Neither of the pilots contacted Mr. Schaberg about any delays of the scheduled 

departure from West Palm Beach. (TR 249:2-4 ). So Mr. Schaberg could not !mow the nature or 

extent of the pilot's deviation from the assignment provided to those pilots by Mr. Schaberg. 

But for the unanticipated and unforeseen and unprecedented ground ambulance delay that 

was not !mown by Mr. Schaberg at the time that he devised the pilot assignments, the assignment 

would have been completed in conformance with 14 CFR § 135.267(d) in terms of the pre-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 of the assignment. (TR 238:3-6). Mr. 

Schaberg's assignment provided for lOY, honrs of rest 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 not known and could not be foreseen by Mr. Schaberg at the time that 

he devised the flight assignments, the flights to Chicago were delayed approximately 3 hours 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 of rest was based upon the times and delays encountered by the flight crew and was not 

part of the planned assignment issued by Mr. Schaberg. (TR 239:16-21). 

25 
The 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 of this case would allow a relaxation of the duty time and rest time provisions of 14 

C.F.R. § l35.267(d). Unlike judicial 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 of the FAA legal department and are drafted to 

define and solidify the FAA's position on a variety of issues. 

The fact is that the Kidd Letter squarely addresses the situation that Mr. Didier found 

himself in 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 

scheduled the assignment by splitting the pilot assigmnents based on the Part 91 legs and the Part 

135 legs, allowing appropriate time for passenger loading and fuel stops and relying on his years 

of experience in assuming that an ambulance that is carrying a critically ill passenger would not 

be late. 

The FAA's investigator, Ms. Boerman admitted under oath that the late arrival of the 

patient was an unforeseeable event. (TR 159:4-8). Based on the Kidd Letter, the delay that 

admittedly constituted circumstances beyond the control of the certificate holder would mean 

that the "flight may nevertheless be conducted, even though crew duty time may extend beyond 

14 hour in a 24 hour period" (Exhibit 4) Based on the pre-flight rest context of the Kidd Letter 

the reference to the extension of the duty day is obviously based on the fact that assuming a 14 

hour duty day, 10 hours of rest must precede that duty day. The FAA's construction of its own 

regulations as set forth in the Kidd Letter should be given due deference in this case. United 

States v. Ozark Air Lines, Inc., 419 F.Supp. 795,798 (E.D.Mo.l976). The FAA and the judge in 

26 
this case failed to give due deference to the FAA's longstanding legal interpretations concerning 

14 C.F.R. § l35.267(d) and were not substantially justified their positions in this case. 

The FAA and the trial judge knew of the Kidd Letter, knew of the language of 14 C.F.R 

§ 135.267(d) and knew or should have known that the focus of the FAA's prima facie case rested 

securely not on the actual flight but on the scheduled flight assignment and the 24 hom look back 

based on the planned completion of the assignment. However, the FAA failed to present any 

evidence in its case in chief that would support a prima facie case of violation of 14 C.F .R. § 

135.267(d) and the judge erred in determining that Trans North violated 14 C.F.R. § 135.267(d), 

that Trans North presented no evidence in mitigation (the ground ambulance delay) and that the 

FAA established its prima fade case by a prepondera11ce of the 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 with the pilots' decisions to continue the mission: 

A. What I testified was that it wasn't foreseen beyond their 

control. They couldn't foresee that the patient was going to be late, 

but they could control if their flight was to depart or not. 

Q Okay. So, you would agree though that this was a 

unforeseeable event, correct? 

A Yes. 

Q The late arrival of the patient? 

A Yes. 

Q And you would agree also that the condition of the 

patient would be something that would be considered in whether or 

not to continue on with the assignment, wouldn't it? I mean, let me 

rephrase that. In this case, the delay that occurred in West Palm 

Beach was due to a patient late to get to the plane, correct? 

A Yes. 

Q And the condition of that patient may be a factor in 

wheilHor or not to continue on with the flight or not, wouldn't it? 

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

wouldn't be a determination if the flight should go or not. 

Q Okay. In this instance, did you know whether or 

not this was a critically ill patient? 

A I don't know. I do not know. 

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 

cetiificate holder? 

A Are you asking me if a critical patient should fly? 

Q I'm asking you whether or not the pilot is 

reasonably considering the condition of the patient in determining 

whether or not he should continue on 'vith the flight plan that was 

designated by the certificate holder from the beginning? 

A I don't think a pilot should worry about their 

passengers to determine if they should go on a flight. They should 

worry about weather, time on duty, fuel, all that kind of stuff, not a 

passenger. 

Q Okay. So, in this case, assuming hypothetically that 

this patient was an 80 year old gentleman who was critically ill 

with heart problems and was in need of intravenous 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 

on with his journey north? 

A My opinion if a patient who is that critical should be 

staying on the ground at a hospital, not in an airplane. (TR 158-

161:21-14). 

This testimony further establishes just how far off the FAA's position was. The FAA did 

not apply the right regulation nor did it apply the right interpretation of its regulation from the 

beginning to the end of this unfortunate litigation. 

The standard for our review in this case is clear. In order to find that the Administrator 

was substantially justified, the Administrator bears the burden of demonstrating 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 of US Jet, NTSB Order No. EA-3817 at 2 (1993), citations omitted. 

28 
In this case, neither the pre-litigation nor the litigation positions of the FAA demonstrate 

that the FAA was substantially justified in proceeding against Trans North. The FAA bears the 

burden of demonstrating substantial justification. Thangaraja v. Gonzales, 428 F.3d 870, 874 

(9th Cir. 2005) (order). '"Substantial justification' in this context means 'justification to a degree 

that could satisfY a reasonable person,' Pierce v. Underwood, 487 U.S. 552, 565 (1988)." AlHarbi v. INS, 284 F.3d I 080, l 084 (9tb Cir. 2002) (order); see also Meier v. Colvin, 727 F.3d 

867, 870-72 (9th Cir. 2013) (social security case). The court has "interpreted tbe term substantial 

justification as describing a position that has 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 of that conduct 

is not deemed to be substantially justified, then the FAA has failed to cany its burden and this 

tribunal need not consider if the 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, it may not revisit that question as to any component of the dispute."). The FAA in this 

case was not substantially justified at any tum in this case. 

The NTSB has determined and recognized that the BAJA's substantial justification test is 

less rigorous than the Administrator's burden of proof when arguing the merits of the underlying 

complaint. Application of U.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 of the 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 

29 
F.2d 1081, 1087 (D.C. Cir. 1986). (holding that the merits phase of a case is separate and distinct 

from the EAJA phase of the case). As the above facts and argument demonstrate an independent 

evaluation should only lead to the conclusion that the FAA was not substantially justified. 

Unlike many EAJA cases, this case does not turn on the credibility of the witnesses or on 

the weight given to certain exhibits 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 should have 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 

but to the applicable law as welL 

ALLOWANCE FEES AND EXPENSES PURSUANT TO 14 C.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 of showing that its position was 

substantially justified, Trans North is entitled to the attorneys fess expended in defending the 

case and to the reasonable expenses of the 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 of the specific services performed, the rate at which each fee has been computed. 

30 
(See Exhibit 22). Trans North attaches an itemization of expenses incurred by Trans North's 

attorneys, Barnett & Borth. LLC, in defending Trans North in this matter (See Exhibit 23) and 

the calculation of fees 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 of attorney 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 over the FAA, 

unless the agency's position in the proceeding was substantially justified or special 

circumstances make an award unjust. In this case, the FAA cannot show that it was substantially 

justified nor that there are any special circumstances that would make the award of attorneys 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 of violation of 14 C.F.R. § I35.267(d) and failed to justify 

its position at any stage of this case. 

WHEREFORE, Trans No!th's application should be granted and the FAA should be 

ordered to pay to the Applicant, Trans North the amount of$ 38,323.89, the amount requested in 

this application. 

Paul R. Borth 

Attorney for Applicant, Trans North 

Barnett & Borth, LLC 

800 Waukegan Suite 200 

Glenview, IL 60025 

(847) 724-5520 

Dated: December 26, 2014 

31 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

TRANS NORTH AVIATION, LTD 

FAA DOCKET NO. (20 12-GL-03-0012) 

FDMS NO. (FAA-2013-0046) 

(Civil Penalty Action- Judge Richard C. Goodwin) 

AMENDED CERTIFICATE OF SERVICE 

The undersigned certifies that the foregoing Equal Access to Justice Act 

Application of Trans North Aviation, Ltd. was served via Federal Express 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 2Wl000 

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 

ONE COPY (Previously Served on December 26, 2014) 

Jessica E. Kabaz-Gomez 

Enforcement Division AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

FAX (202) 267-5106 

P c.t../ ~/ 7 a . ltll ,/ / 

Attorney ~Applican(