^):RARTMENTOF 

HA^'SPORTATION 

v:'::T OPERATIONS 

SERVED SEPTEMBER 10,2010 ^ 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

r- .'-••^-f A II: 22 

^kyJ tfi,^^ L^f^JA) 

IN THE MATTER OF , § ^ 

iEks^) i RJGCURRENT TRAINING CENTER, INC 

10 ^T 

FAA DOCKET NO. (CPWGLflMi) 00 jO -Q • I 

(Civil Penalty Action) _ il j 

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APPLICATION FOR AN AWARD OF ATTORNEY FEES AND OTHER EXPENSES 

PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT (EAjA) 

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

its counsel, BARNETT LAW OFFICES, P.C, pursuant to 5 U.S.C. §504 and 14 C.F.R. §14 

hereby applies for attorney fees and other expenses incuired in The Matter of Recurrent Training 

Center, FAA Docket No. (CP09FL0008). The Initial Decision of Administrative Law Judge 

Richard C. Goodwin ("Decision") was served August 11, 2010. (See attached Exhibit A, 

Decision) The Decision found that the aUegaiions of the FAA ("Agency") were not proven and 

the Complaint was dismissed. According to 14 C.F.R. § 14.20(c)(4), an initial decision is 

considered to be a final decision if no petition for reconsideration is filed on the last day on 

which such a petition could be filed. The FAA did not timely file an appeal within 10 days of 

the initial decision (i.e. by August 23, 2010), at which time the initial decision became final for 

ptirposes of this application. Accordingly, this application is timely and appropriate in 

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accordance with 14 C.F.R. § 14.20(a) as it is filed no later than 30 day.s after the final disposition 

of the proceedings. The following points are made in support of this application: 

I. HISTORY OF THE MATTER 

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

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

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

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

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

R9KS949K for an approved Provisional Pilot School with a Special Preparation 

Courses rating issued by the FAA. 

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

Number R9KX049K with Training Specifications to conduct training courses with 

respect to 14 C.F.R. 142. 

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

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

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

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

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

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

7. FTD Level 1, 3 and 6 are (he FTDs approved for RTC. 

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

Approach maneuvers. 

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

Test Standards ("PTS")- The PTS includes Landing firom a Straight-in and Circling 

Approach maneuvers. 

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

a. §141.41(b)(3), 

b. §141.83(a)(l)and 

c. $61.57(d) 

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11. RTC argued that the language of 61,57(d) is clear and unambiguous on its face and 

that an IPC need only include "a representative number of ta-sks". 

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

could be decided on questions of law (See attached Exhibit A, Decision, I. Para. 7). 

13. The Court stated Ln its decision tiiat all allegations hinged upon an evaluation of the 

langUE^e of 14 C.F.R. §61.57(d). (See attached Exhibit A, Decision, III. Para.. 2) 

14. The Court fvuther stated in its decision that the proper reading of 14 C.F.R. §61.57(d) 

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

and not necessarily the ones named in the PTS chart. (See attached Exhibit A, 

Decision, III. Para. 4) 

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

and the manifest intent of the regulation would thus be thwarted. (See attached 

Exhibit A, Decision, 111. Para. 4) 

16. The Court tiirther stated that the Agency relied on statements firom the PTS which do 

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

duties not compelled by the plain words of 14 C.F.R, §61.57(d). (See attached Exhibit 

A, Decision, III. Para. 6) ^ 

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

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

Agency are beside the point, (See attached Exhibit A, Decision, III Para. 7) 

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

the Compliant is "hereby dismissed". (See attached Exhibit A, Decision, III Para. 8) 

IL APPLICANT IS THE PREVAILING PARTY 

The attached Decision (Exhibit A) and Points 12 and 14 thru 18 above clearly establish 

that the Applicant is the prevailing party, 

r,U. THE POSITION OF THE FAA WAS NOT SUBSTANTIALLY JUSTIFIED 

Pursuant to 14 C.F.R. §14.04, the applicant points out that the position of the Agency was not 

substantially justified as indicated by points 14 thru 17 above. The Agency was not substantially 

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justified in attempting to discern or clarify the meaning of 14 C.F.R. §61.57(d) by reference to 

other regulations, directives and interpretations. The Court rejected any such assertions. The 

Court also staled that the operative meaning of 14 C.F.R. §61.57(d) was clear and unambiguous. 

(See attached Order, 111. Para. 4) It is apparent then, that the FAA knew or should have known 

that 14 C.F.R. §61.57(d) was clear on its face. Accordingly, the position of the Agency, that 

RTC was required to do more than the requirements of the regulations, was not substantially 

justified. 

IV. RTC IS A "PARTY" WITH A NET WORTH NOT EXCEEDING 

$7 MILLION AT THE INITIATION OF THESE PROCEEDINGS. 

Pursuant tol4 C.F.R. §14.03, RTC is a "party" as defined in 5 U.S.C. 504(b)(1)(B) and 5 

U.S.C. 551(3). Further, pursuant to 14C.F.R. §14.11, RTC is a corporation employing less than 

500 employees with a net worth of less than 57 million at the initiation of these proceedings. 

RTC is in the business of providing training to pilots in flight training devices and at the 

initiation of these proceedings engaged approximately 19 employees. In the one-year period 

prior to the date on which this proceeding was iiutialed, the Applicant did not transfer any assets 

or incur any obligations that reduced the net worth of the Applicant below the applicable net 

worth ceiling. 

A detailed exhibit showing the net worth of the Applicant at the initiation of these 

proceedings is attached, (See Exhibit B.) 

V. TOTAL FEES AND COSTS FOR WHICH AN AWARD 

IS SOUGHT: $19,416.80 

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Documentation of attorney fees paid or payable to Charles R. Bamett, III along with 

other expenses is attached. (See Exhibit C) Pursuant to 14 C.F.R. § 14.05(c), the following shall 

be considered in determining the reasonableness of the fees sought for an attorney: 

1. Charles R. Bamett, in as the owner of Bamett Law Offices, P.C. is in private practice 

and concentrates his practice in aviation law. His customary fee for such services is $200 per 

hour. 

2. The prevailing rate for similar services in the community in which Bamett Law Offices, 

P.C. is located is substantiated by the attached affidavits j&om two other attorneys who also 

practice aviation law in the same community. (See attached affidavits at Exhibit? D and E) 

3. The time actually spent in representation of RTC is documented in the attached 

Exhibit C. 

4. The time spent on this matter was reasonable in light of the difficulty or complexity of 

the issues in the proceeding; and 

5. Such other factors as may bear on the value of the services provided would include Mr. 

Bamett's extensive background in aviation, v^iich includes over 10,000 flight hours logged as an 

Airline Transport Pilot and a Masters Degree in Aeronautical Science fi-om Embry Riddle 

Aeronautical University. Mr. Baraett is also a panel attorney of the Aircraft Owners and Pilots 

Association Legal Services Plan and as such has received specific Training and education 

regarding representation of clients in matters concerning the FAA, 

Documentation of fees paid or payable to John M, Killeen is attached. (See Exhibit F). 

Pursuant to 14 C.F.R. § 14.05(c), the following shall be considered in determining the 

reasonableness of the fees sought for an agent; 

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John M, Killeen is the President of RTC and provided research and analysis of FAA 

publications, regulations and other controlling guidance in this matter. His customary fee for 

such services is $102 per hour. 

2. The time actually spent in research and analysis of issues involving this matter is 

documented in the attached Exhibit F; and 

4. The time spent on this matter was reasonable in light of the difficulty or complexity of 

the issues in the proceeding. 

All fees requested are for work performed after the issuance of the complaint. 

VI. CONCLUSION 

For all of the foregoing reasons, this Court should find that the Applicant is the prevailing 

party in this matter, that the Applicant meets the economic threshold qualification criteria of the 

EAJA, that an attorney client relationship exists and that attorneys fees and other expenses were 

incuired, and that the Agency (FAA) was not substantially justified in the litigation which led to 

this appeal when it failed to properly follow the plain language of 14 CFR §67.51(d) in applying 

the terms "representative number of tasks" when considering what should required of the 

Applicant to conduct Instrument Proficiency Checks in a Flight Training Device. Subsequently, 

die award of fees is warranted in the interests of justice. 

WHEREFORE, the Court should order tiie Agency to pay to the Applicant, $19,416.80, die 

amount requested in this application. 

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List of Attached Exhibits 

Exhibit Number 

A 

B 

D 

E 

F 

Document 

Initial Decision of Administrative 

Law Judge Richard C. Goodwin 

Net Worth Statement of Reciurent 

Training Center 

Attorney Fees of 

Charles R. Bamett, III 

Affidavit of Phillip A. Prossnitz, Esq. 

Affidavit of John Scott Hof^ Esq. 

Invoices of John M. Killeen 

Numhar of Pages 

6 

1 

2 

1 

1 

2 

Dated: September 10, 2010 

Charles R. Bamett, III 

BARl^IETT LAW OFFICES, P.C 

1664 Moorland Lane 

Crystal Lake, Illinois 60014-2985 

(815)356-8647 

(815) 356-7042 (FAX) 

RespectfiJly submitted. 

Recurrent Training Center, Inc. 

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CERTIFICATE OF VERIFICATION 

Under penalty of perjury as provided by law the undersigned cimifies thai rhe informaiion set 

forth in this APPLICATION FOR AN AWARD OF ATTORNEY FEES AND OTHER 

EXPENSES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT (EAJA) are uue and 

correct, except as to matters therein stated to be on information and belief and as to such matters 

(he undersigned certifies as aforesaid that he vcriJy believes rhe same to be true. 

\ h -/—"^ Dated this / ^ day of September, 2010. 

John,KilIee 

Pfcsyent 

Recurrent Training Center 

315SDunlap 

Savoy, IL 61874 

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CERTIFICATE OF SERVICE 

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

as follows: 

ORIGINAL AND ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000 

FAX: 202-493-5142 

ONE COPY 

Briana Martino, Complainant's Counsel 

Great Lakes Region, AGL-7M 

Federal Aviation Administration 

2300 East Devon Avenue 

Des Plaines, IL 60018-4696 

TEL; 847-294-7713 

FAX: 847-294-7498 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Oface of Hearings, M-20 

1200 New Jer.sey Avenue, S.E. 

East Building Ground Floor 

Room E12-320 

Wasliington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536 

Dated this 10** day of September, 2010. 

aariesRrBaSrtrnr^"^ 

Attorney for Applicant 

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