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oEPARTMENT OF 

ArasPORTAIlON 

U. S. DEPARTMENT OF TRANSPORTATION pf HPERATIOMS 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTOK D,c. : q p^^i ?0 A 10= 2^ 

In ihe Matter of: GRHBN AVIATION MANAGEMENT CO., LLC 

F AA Order No. 2010-4 

Docket No. CP07EAOOO3 

FDMS No. FAA-2007-26989 

APPIACANT'S RESPONSE TO ORDER FOR FURTHER BRIEFING 

COMES NOW, Green Aviation Management Co., LLC d/b/a Green Air ("Green 

Air"). Applicant herein, by and through undersigned counsel, and hereby responds to the 

Administrator's Order for Further Briefing served on June 14, 2010. Furthermore, 

pur.suantio §14.26 of the Procedural Rules (14 C.V.R. Part 14), Applicant hereby 

rcspectfvUly requests that the Administrator order further proceedings, such as an 

infoi-mal conference, oral argument, additional written submissions, or an evidentiary 

hearing, if necessary for a full and fair resolution of the issues arising fi-om the 

application. 

Since the Agency did not challenge whether Applicant is financially qualified to 

receive an EAJA award; whether the claimed attorney.-!;' fees and expenses are reasonable 

under the circum.stances; or whether special circumstances make an EA.TA award unjusr; 

those challenges have been waived. As a result, the sole remaining issues are whether 

Applicant is the prevailing party and whether the Agency was substantially justified. 
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ISSUES PRESENTED 

I. Whether Green Air is a Prevailing Party? 

II. Did the ALJ's dismissal of the proceedings with prejudice in this case after 

the FAA withdrew its complaint result in a material alteration of the legal 

relationship of the parties as required by Buckhannon? 

ill. Did the dismissal with prejudice have the "judicial imprimatur" required 

under Buckhannon? 

IV. Must a "crewmember" under Section 135.85 he an "employee" of the 

certificate holder? 

i. If so, how is "employee" defined in this context? 

ii. Do the regulations permit a certificate holder to transport 

crewmembcrs who are independent contractors or employed by 

independent contractors? 

ARGUMENT 

1 GREEN AIR IS A PREVAlLING PARTY IN THIS PROCEEDING. 

In this case, the dismissal was with prejudice, which some courts have found 

sufficient for "prevailing party" status under Buckhannon Board and Care Home. Inc. v. 

West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), when 

res judicata will prevent a plaintiff from refilling a claim. See e.g. Hif^hway Equip. Co. v. 

FECO, lAd. 469 F.3d 1027, 1035 (Fed. Cir. 2006); Claiborne v. Wisdom, 414 F.3d 715, 

719 (7th Cir. 2005); Miles v. California, 320 F.3d 986, 989 (9th Cir. 2003); Mother & 

Father v. Cassidy, 338 r.3d 704, 708 (7lh Cir. 2003). Ihcse cases have held as much 

precisely because a voluntary dismissal with prejudice "effects a material alteration of 
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Lthe] legal relationship with the other parties, because it terminates any claims [the 

plaintiffj may have had against [the defendants] arising out of this set of operative facts." 

Claiborne, 414 F.3d at 719; see also Noxell Corp. v. Firehouse No. 1 Bar-B-Que 

Restaurant, 111 F.2d 521, 525 (D.C. Cir. 1985) ('Tn contrast to a plaintiff who 

establishes only a right to proceed further, defendant Firehouse has here achieved an 

enduring victory. Noxell's suit stands dismissed, and Noxell is forever barred fi-om 

rcinsiiiuting the action in the District of Columbia."). 

Here, Green Air achieved a judicially sanctioned alteration in tiic parties' 

relationship: it obtained court-ordered termination of the proceeding and an abandorunent 

of all claims by the FAA in the pending action. The abandonment of federal claims was 

given preclusive effect in the pending action, and was never reversed, dissolved or 

undone. As a result. Green Air achieved final preclusive judgment on the merits. 

Nevertheless, a rule which would allow the FAA, through voluntary dismissal, to moot 

the preclusive effect of a judicial order cannot be squared with the Supreme Court's 

holding in Buckhannon. 

II. IHE ALJ'S DISMISSAL OF THE PROCEEDING WITH 

PREJUDICE IN THIS CASE RESULTED IN A MATERIAL ALTERATION OF 

THE LEGAL RELATIONSHIP OF THE PARTIES AS REQUIRED BY 

BUCKHANNON. 

Although the National Transportation Safety Board (NTSB) has held that the 

Buckhannon standard applies to cases arising from certificate suspensions by the FAA 

(Applications of Turner and Coonan, NTSB Order No. E-5467 at 5), the DC Circuit 

Court of Appeals holding in Turner and Coonan v. N.T.S.B., 608 F. 3d 12; 2010 U.S. 

App. LEXIS 11648 (D.C. Cir. 2010) has no binding effect on the present case since the 

facts are clearly distinguishable. The EAJA application filed by Captains Tumer and 
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Connan arose under the National Transportation Safety Board's Rules of Practice, 49 

C-F-R. Part 821 and Part 826. Ihe present case is controlled by the Rules of Practice 

codified at 14 C.F.R. Pans 13 and 14. 

Furthermore, following a voluntary withdrawal of the Complaints by the FAA in 

Turner and Connan, the DC. Circuit Court specifically found that the cases were not 

dismissed with prejudice. By contrast, in the present case, following vohmtary 

withdrawal by the FAA, the Complaint was dismissed with prejudice. Therefore, the 

cases are factually distinguishable. 

The major distinction between the NTSB's Rules of Practice and the FAA's Rules 

of Practice, involve the specific way in which a case may be voluntary dismissed by the 

Agency. In the present case, 14 C.F.R. § 13.215 entitled, Withdrawal of complaint or 

request for hearing, states the following: 

At any time before or during a hearing, an agency attorney may withdraw a 

complaint or a party may withdraw a request for a hearing without the consent of 

the administrative law judge. If an agency aitcmiey withdraws the complaint or a 

party withdraws the request for a hearing and the answer, the administrdiive law 

judge shall dismiss the proceedings under this subpart with prejudice. 

14 C.F.R. § 13.215 (emphasis added). 

Furthermore, 14 C.F.R. §14.20, entitled When an application may be filed, states 

the following, in part: 

(a) An [EAJAl application may bo filed whenever the applicant has prevailed in 

the proceeding, but in no case later than 30 days after the FAA Decisionmaker's 

final disposition of the proceeding, or service of the order of the Administrator in 

a proceeding under the AMS. 

(c) For purposes of this part, final disposifion means the later of: 

(5) Issuance of a final order or any other final resolution of a proceeding, 

such as a settlement or voluntary dismissal, which is not subject to a 

petition for reconsideration. 
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14 C.F.R. §14.20 (emphasis added). 

Thus, it is clear that the Rules of Practice concerning Civil Penalty proceedings 

consider a ''voluntary dismissal" to be a "final disposition" triggering the time to file an 

Application under the EAjA. Notwithstanding the above, the Agency cannot cite to any 

authority in support of its position that a voluntary dismissal, with prejudice under Rule 

13.215, is not insufficient to tile an EAJA application under Rule 14.20. 

The Buckhannon Court Did Not Expressly Hold That Only Judgments on the 

Merits Qualify a Prevailing Party, 

In Buckhannon, the Supreme Court articulated the test for determining when a 

litigant qualifies as a prevailing party under certain federal fee-shifting statutes. Under 

Buckhannon, the inquiry for dcTemiining the prevailing party requires an examination of 

whether the party seeking fees has experienced a judicially sanctioned material alteration 

in the legal relationship of the parties in the lawsuit. See Id. at 605. The Supreme Court 

considered whether a plaintiff who has failed to secure a final judgment on the merits or a 

court-ordered consent decree, but has nevertheless achieved the desired result because the 

lawsuit brought about a voluntary change in the defendant's conduct, can be deemed a 

prevailing party for purposes of warranting a fee award. 

In rejecting the "catalyst theory" for determining prevailing party fee awards., the 

Supreme Court distinguished court-ordered or judicially sanctioned relief from favorable 

outcomes that result from a voluntary, extra-judicial change in the defendant's conduct. 

The Court cited final judgments on the merits and court-ordered consent decrees as 

examples of judicially enforceable relief, which stand in contrast to relief obtained as a 

resuh of defendant's unilateral acts. Sue Id. at 604. 
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Specifically, the Supreme Court held: 

A defendant's voluntary change in conduct although perhaps accomplishing what 

the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial 

imprimatur on the change. Our precedents thus coimsel against holding that the 

term "•prevailing patty" authorizes an award of attorney's fees without a 

corresponding alteration in the legal relationship of the parties. 

Id. at 605 (emphasis in original). 

llie Supreme Court surveyed its past holdings awarding attorney's fees where 

plaintiff obtained a judgment on the merits or a court-ordered consent decree, and its 

refusal to award fees where a plaintilf failed to obtain any judicial relief on the jnerits 

but, instead, simply survived directed verdict or secured a judicial pronouncement -

without any accompanying judicial relief - that defendant violated the Constitution. See 

Id. at 605-606. The Court's focus as reflected in Buckhannon has been the judicial nature 

and court-ordered genesis of the relief obtained which in turn effectuates a change in the 

parties' legal relationship. Thus, while Buckhannon recognized that "[njever have we 

awarded attorney's fees for a non judicial 'alteration of actual circumstances,'" the Court 

did not expressly hold that only judgments on the merits qualify a prevailing party. Id. at 

606 (citation omitted). 

Nowhere in Buckhannon did the Supreme Court expressly require immunity from 

future suit as a condition to an award of fees. Id. (citation omitted). Instead, the test that 

the Court established is broad enough to encompass a court tjrdered termination of 

proceeding, as in the present case: "[AJ 'prevailing party' is one who has been awarded 

some relief by the court." Id. at 603. 

fhus, the question is whether some court-ordered relief is obtained in the lawsuit 

(as opposed to by virtue of a mere change in circumstances), not whether a fully litigated 
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preclusive judgment is entered. See Id. at 615-619. 

HL THE DISMISSAL WITH PREJUDICE HAD THE "JUDICIAL 

IMPRIMATUR" REQUIRED UNDER BUCKHANNON. 

A. The Judicial Imprimatur Standard Under the Prevailing Party 

Requirement of the EAJA. 

The Supreme Court set the general standards for defining the term "prevailing 

party" in federal attorneys' fees shifting statutes in Buckhannon, 532 U.S. 598, a case 

concerned with fee statutes other than the F.AJA.' "[T]he Supreme Court's reasoning in 

'Buckhannon is prestimed to apply generally to all fee-shifiing statutes That use the 

prevailing party terminology.'" Doe v. Boston Pub. Schs., 358 F.3d 20, 25 (1st Cir. 2004); 

see also Ma v. Chertqff, 547 F.3d 342, 344 (2d Cir. 2008). 

I he Supreme Court held that mere success in accomplishing a party's objectives 

is insufficient to be a prevailing party for a fee award. Buckhannon^ 532 U.S. at 606. The 

Court rejected the "catalyst" theory which had been accepted by many circuits. The 

Supreme Court noted that use of the catalyst theory would have the adverse effect of 

discouraging the government from voluntarily settling cases (pre-suit or post-suit). See 

Id. ai 608 (noting the "disincentive that the 'catalyst theory' may have upon a defendant's 

decision to voluntarily change its conduct"). The Court stated that its plain language 

approach served the purpose of avoiding the result of a second major litigation over 

attorneys' fees. See Id. at 609-11. 

Buckhannon explicitly identified two and only two situations which meet the 

judicial imprimatur requirement: where plaintiff has "received a judgment on the merits" 

or "obtained a court-ordered consent decree." Id. at 605. The Court was clear that 

' Buckhannon involved provisions of the Federal Housing Amendments Act of 1988, 42 U.S.C. § 

3613(cX2) and the Americiin.s wkh Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12205. 
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"settlement agreements cnlbrced through a consent decree" may be the basis for fee 

awards and the resulting change in the legal relationship between the parties must be 

"court-ordered." Id. at 604. The change in the legal relationship must be a "judicially 

sancfioncd change." Id. at 605. 

fhc Supreme Court has described what it meant by a "court-ordered consent 

decree." It disfinguished such consent decrees from "private settlements" (as to which 

fees may not be awarded), stating that "[p]rivate settlements do not entail the judicial 

approval and oversight involved in consent decrees." Id. at 604. 

Buckhannon contrasted final judgments on the merits and court-ordered consent 

decrees with situations which failed to meet the judicial imprimatur test: for example, 

securing the reversal of a directed verdict, acquiring a judicial pronouncement that a 

defendant has violated the Constitution unaccompanied by "judicial relief," or obtaining a 

non-judicial "alteration of actual circumstances." Id. at 605-06. 

The Supreme Clouri emphasized three related factors. The first was that the 

change in legal relationship must be "court-ordered." See Id. at 604. Second, there iriust 

be judicial approval of the relief in relation to the merits of the case. Third, there must be 

judicial oversight and ability to enforce the obligations imposed on the parties. See 

Buckhannon, 532 U.S. at 604 n.7 (noting that judicial oversight is inherent in consent 

decrees but not in private settlements). However, the Supremo Court in Buckhannon left 

open the question of whether disposition other than a final judgment on the merits can 

confer prevailing party status. 
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B. It Makes Nu Difference Thut the ALJ was Required to Dismiss the 

Case With Prejudice Under 14 C.F.R. §13.215. 

With regard to the ALJ's requirement to dismiss the case with prejudice pursuant 

to Rtilc 13.215, a5suining arguendo that there is a void in the regulation, any such void 

must be filled by rulemaking under the Administrative Procedtu-e Act and not through 

this adjudicatory proceeding. See United States v. Frontier Airlines, Inc. (563 F.2d 1008 

(10th Cir.)). 

In Frontier Air line.s. Inc., the lOth Cir. Court of Appeals addressed a .situation in 

which the use of aircrall flight recorder data for investigations and non-accident incidents 

was "simply not covered by the regulations". Accordingly, the Court found that "it is an 

area in which the FAA has not exercised its rtilemaking authority." The court further 

found the circumstances very much like those considered in Pike v. CAB, 303 F.2d 353 

(8th Cir.), where the matter sought to be regulated was also in a ""gap". Accordingly, the 

Pike court held that the CAB could not close the gap by implication or pohcy. The 

Frontier Airlines court agreed, and stated that "the void can only be filled by rulemaking 

under the Administrative Procedure Act." 

Moreover, the Supreme Court in NLRB v. Wyman-Gordan Co., 394 U.S. 759, 89 

S.Ct. 1426, 22 L.Ed.2d 709 stated: 

There is no warrant in law for the Board to replace the statutory scheme with a 

rule-making procedure of its own invention. Apart from the fact that the device 

fashioned by the Hoard does not comply with the statutory command, it obviously 

falls short of the substance of the requirements of the Administrative Procedure 

Act... 

NLRB V. Wyman-Gordan Co., 394 U.S. 759, 89 S.Ct. 1426. 
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in the present case, if the Administrator seeks to avoid payment of an EAJA 

award merely because the AfJ dismissed the proceeding with prejudice (by complying 

with Rule 13.215), rather than intending to confer prevailing party status upon Green Air, 

then the Administrator must seek nilc-changing through the Administrative Procedure 

Act and not through this adjudicatory proceeding. 

C. Several United States Circuit Courts of Appeal Have Recognized That 

Prevailing Party Status Docs Not Require Final Preclusive Judgment on the 

Merits. 

Several federal circuit courts have expressly recognized that under Buckhannon 

dispositions other than final judgments on the merits can confer prevailing party status. 

More significantly, several circuits have confcrted prevailing party status on plaintiffs 

who obtam interim relief even when plaintiff ultimately fails on the merits of the case, 

fail.s to obtain permanent relief, or the underlying claims are rendered moot. 

The Second Circuit in Vacchio v. A.<;hcroft. 404 F.3d 663 (2d Cir. 2005), expressly 

rejected the contention that plaintiff is considered a prevailing party only if the court 

finally adjudicated the merits of plaintiffs claim. In finding plaintiff the prevailing party, 

the Second Circuit found the material alteration test applies to "any interim judicial relief 

that alters the parties' legal relationship." Id. at 673. In that case, the court stated: 

Buckhannon does not limit fee awards to enforceable judgments on the merits or 

to consent decrees. While these orders were cited by the Court as examples of the 

types of actions that would convey the judicial imprimatur necessary to a fee 

award, broader language in Buckhannon indicates that these examples arc not an 

exclusive list. 

Id. at 674 (quoting Fres. Coalition v. Fed. Transit Admin., 356 F.3d 444, 452 (2d Cir. 

2004) (quoting Buckhannon. 532 U.S. at 604)). 

Applying this reasoning, the Second Circuit found plaintiff was a prevailing party 

lor having obtained an interim order granting him release pending appeal, even absent 

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preclusive final judgment on the merits, because the ruling "involved an assessment of 

the merits, [and] unquestionably materially altered the existing legal relationship between 

the parties." Id. 

Furthermore, in Roher.wn v. Giuliani, 346 F.3d 75 (2d Cir. 2003), the Second 

Circuit expressly rejected a narrow reading oi' Buckhannon that would limit relief to final 

judgments on the merits: 

We therefore join the majority of courts to have considered the issue since 

Buckhannon in concluding that judicial action other than a judgment on the 

merits or a consent decree can support an award of attorney's fee.';, so long as 

such action carties with it sufficient judicial imprimatur. Id. at 81-82 (emphasis 

added); see also Perez v. Westchester County Dep't of Corr., 5S1 F.3d 143; 150-

151 (2d Cir. 2009) (rejecting contention that Buckhannon limited prevailing party 

status to final judgments on the merits, consent decrees or court-ordered 

settlements and stating: "Although the Supreme Court specifically mentioned 

merits decisions and consent decrees, it did not suggest that one of these t^'O 

conditions was necessary for a party to prevail. Indeed, it referred to them as 

'examples' of sufficient outcomes.") (emphasis added). 

The majority ol" circuits to have considered the issue have refiised to construe 

Buckhannon as restricting prevailing party status to litigants who obtain final judgment 

on the merits. See, e.g. Dearmore v. City of Garland 519 F.3d 517, 521 (5th Cir. 2008) 

(''Although an enforceable judgment on the merits and a court-ordered consent decree 

have sufficient judicial imprimatur, these examples are not exclusive."); JV. Cheyenne 

Tribe v. Jackson. 433 F.3d 1083, 1085 (8th Cir. 2006) (noting open question whether 

court orders, such as declaratory judgments and preliminary injunctions, may create 

judicially sanctioned material alteration in parties' relationship); Smalbein v. City of 

Oaytona Beach. 353 r.3d 901, 905 (11th Cir. 2003) (concluduig that "judicial action with 

sufficient judicial imprimatur other than a judgment on the merits or a court-ordered 

consent decree may allow for an award of attorney's fees."); TD. v, Lagrange School 

11 
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Disl.. 349 F.3d 469, 478 (7th Cir. 2003) ("a litigant must have obtained a judgment on the 

merits, a consent decree, or some similar form of judicially sanctioned relief"); see also 

Bell V. Bd of County Comm'rs of Jefferson County, 451 F.3d 1097, 1103 (10th Cir. 2006) 

(private settlement agreements can qualify); Truesdell v. Philadelphia IIous. Autk, 290 

F.3d 159, 164 (3d Cir. 2002) (judicially enforceable settlements can suffice). 

Ihe Ninth Circuit has expressly rejected overly narrow interpretations (^f 

Buckhannon and has held on numerous occasions that "judgments and consent decrees 

are examples ... hut they are not the only examples'"^ of judicial action sufficient to 

convey prevailing party stams. Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th 

Cir. 2002) (emphasis added); see aho Carhonell v. INS, 429 F.3d 894, 899 (9th Cir. 

2005) (recognizing that litigants can prevail for purposes of fees "as a result of judicial 

action other than a judgment on the merits"); Richard S. v. Dep'i of Developmental 

Servs., 317 F.3d 1080, 1086 (9ih Cir. 2003) ("prevailing party status is not determined by 

the degree of success achieved . . , [it] is determined by inquiring whether the party's 

"'actual relief on the merits of [their] claim materially alters the legal relationship 

between the parties by modifying the defendant's behavior in a way that directly benefits 

the plaintilT.'") (citation omitted); Tipton-Whittingham v. City of LA.. 316 F.3d 1058, 

1062 (9th Cir. 2003) (Buckhannon's examples of judgments and consent decrees are 

"illusU'ativc, not exhau-stive" types of relief capable of conferring prevailing party status). 

These cases demonstrate that circuit courts uniformly confer prevailing party 

status on plaintiffs who obtain interim relief without securing a final preclusive judgment. 

By definition, preliminary injunctions and stays are not preclusive in the pending action 

and are accorded no preclusive effect in future actions between the parties. Prelimi.nary 

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relief cannot immunize plaintiffs from the risk of future .suits, nor foreclose the possibility 

that defendants will recommence the offending conduct and invite a second action. Yet, 

plaintiffs are not required to obtain preclusive judgments as a condition of awarding fees. 

Circuit courts confer prevailing party status not because plaintiffs obtain a preclusive 

final judgment on the merits, but, rather, because they obtain a judicially sanctioned 

change in the parties' legal relationship for the pertinent time period during the pending 

action. 

D. The FAA'S Interpretation of Buckhannon is Unreasonable iind 

Overreaching. 

A per se rule requiring that EAJA applicants must obtain immunity from future 

enforcement action by the FAA, notwithstanding a material alteration of the parties' legal 

relationship in the pending action, is tantamount to requiring the applicants to first obtain 

an enforceable judgment on the merits. Such a categorical rule, however, has been 

expressly rejected by several circuit courts. A rule that allows the FAA to deprive an 

bAJA applicant of prevailing party status by a voluntary wiJidrawal of its action in order 

to avoid judicial dismissal, fundamentally undermines Buckhannon, which rejected the 

idea that parlies through their own actions could confer prevailing party status. In 

essence, this would pennit the FAA to unilaterally nullify a material alteration of the 

parties' legal relationship by withdrawing its claims in the face of imminent judicial 

action, and to annul the impact of judicial orders by dismissing at the eleventh hour. It is 

difficult to imagine that the Supreme Cotirt intended such a result. 

Accordingly, the Administrator should grant the Application for fees and 

expen.ses under the EAJA. 

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E. A Voluntary Dismi.<i$al With Prejudice is a Complete Adjudication of 

the Claims. 

In the present case, the FAA's volunury withdrawal is analogous to a voluntary 

dismissal by a plaintiff under the Federal Rules of Civil Procedure. Since a voluntary 

dismissal with prejudice "is a complete adjudication of the claims and a bar to a further 

action on them . .. , it has been held that [the trial court] has no discretion to refuse such 

a dismissal and cannot force an unwilling plaintiff to go to trial," See Zhengzhou 

Harmoni Spice Co.. Ltd., et al. v. United States, et al., 2010 Ct. Intl. Trade Lexis 7; SLIP 

OP. 2010-08 (citing 9 Wright & Miller, Federal Practice and Procedure: Civil 3d §2634 

at 551). 

Other federal circuit courts have found dismissal with prejudice sufficient to 

award attorney fees. See, e.g., Riviera Distrib.. Ina. v. Jones, 517 F.3d 926 (7''' Cir. 2008) 

(dismissal with prejudice satisfies Buckhannon, even absent adjudication of merits); see 

also, Miles v. California, 329 F.3d 986, 989 (9'*^ Cir. 2003) (dismissal without prejtidice 

sufficient where federal claim foreclosed). In the present case, the FAA's voluntary 

withdrawal was "conclusive in practical effect" since the Agency was unable to bring 

further suit against Green Air, concerning the same alleged regulatory violations. 

IV. A "CREWMEMBER" UNDER SECTION 135.85 IS NOT 

REQUIRED TO BE A "DIRECT EMPLOYEE" OF THE 

CERTIFICATE HOLDER. 

fhc Federal Aviation Regulations (FARS) define the term crewmember as follows: 

Crewmembcr means a person assigned to perform duty in an aircraft during flight 

time. 

14C.I-.R. §1.1. 

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The regulation(.s), interpretation(.s), and FAA Policy do not specify whether an 

employee under Section 135.85 is required to be a direct employee of the certificate 

holder. Nevertheless, the practical way in which the Part 135 "on-demand" air carrier 

industry works in reality, dictates that crcwmembers (i.e., pilots, mechanics, and cabin 

attendants) frequently work as direct employees or by contract either part-time or "on 

call" when needed. As a result, many Part 135 crevvmembers work for more than one air 

carrier at a time, depending up<in when and where the demand arises. Certain 

crewmcmbers, like Ms. Daly (the cabin attendant in this case), work other fbll-time jobs 

and act only as a crewmembcr (by contract) only when the need arises. It would be 

unreasonable to assume that 14 C.F.R. §135.85 applies only to full-time direct employees 

of an air carrier. 

A. How is '"employee" defined in the context of 14 C.F.R. 

§135.85 ? 

Although the FAR does not define the term employee in the context of 14 C.F'.R. 

§135.85, the FAA Chief Counsel's Opinion is very instructive on the matter. 

Specifically, by FAA Chief Counsel letter dated March 19, 1986, John H. Cassady, 

Assistant Chief Counsel, Regulations and Enforcement Division, provided the following 

legal interpretation concerning 14 C.F.R. §121.547(a)(1), which stated the following; 

(a) No person may admit any person to the flight deck of an aircraft unless the 

person being admitted is 

(1) a crewmember. 

In his legal interpretation, Mr. Cassady stated the following: 

A "crewmembcr" is defined in Section 1.1 of the FAR as "a person as.signed to 

perform a duly in an aircraft during flight time." Your question concerns one 

airline's policy of assigning an FAA certificated mechanic employee to ride the 

jumpseat on a revenue passenger trips. You say that such persons should not be 

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permitted to ride the jumpseat pursuant to Section 121.547(a)( i) because they are 

not "crcwmembers." To support this view, you point out that Part 69 of the FAR, 

which provides for mechanic certification, refers to them as "airman other than 

flight crewmembers." However, we do not believe this language precludes 

certificated mechanics from being "crewmcmbers" under Part 121. 

Part l.l defines "tlight crewmember" as a "pilot, flight engineer, or flight 

navigator assigned to duty during flight time." This definition is, of course, more 

narrow than the definition of "crewmember." It does not include, for example, 

flight attendants although they may clearly be "crewmembers." Thus, it is clear 

that persons other than "fliglit crewmembers" may be "crewmembers" if they are 

assigned duty during flight time. 

In the ."Situation you describe, the status of the mechanic employee as a 

"crewmember" would depend on whether the mechanic was actually assigned 

duty during flight time. If this is so, the mechanic is a "crewmembcr" and may 

ride the jumpseat pursuant to Section 121.547(a)(1). On the other hand, if the 

mechaiuc is only riding the trip to be available for duty on the ground instead of 

during flight, Section 121.547(a)(1) is not applicable. 

FAA Chief Counsel Interpretation dated March 19,1986 (emphasis added). 

The regulations ol" 14 C.F.R. Part 121 air carriers are more stringent than the 

regulations for 14 C.F.R. Part 135 air carriers, like Green Air. Therefore, if the FAA 

Chief Counsel opined that an employee may ride in the jumpseat during a Part 121 

revenue passenger trip, as long as she is actually assigned duty during fight time, then 

likewise, Part 135 air carnti employees should be permitted similar jump.seat privileges. 

In the present case, there is no question that Erin Daly was "actually assigned 

duty during fight tune." She rode in the jumpseat and was present during the flight in 

order to provide assistance to the flight crew concerning customer service to tlie 

passengers. Therefore, according to the FAA Chief Counsel, Erin Daly was authorized to 

occupy the jumpseat during the passenger carrying revenue flights in question. 

B. Do the regulations permit a certificate holder to transport 

crewmembers who are independent contractors or employed 

by independent contractors? 

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The FAR at issue, 14 C.F.R. § 135.85, authorizes an employee of the certiticate 

holder to be carried aboard an aircraft without complying with the passenger carrying 

requirements of 14 C.F.R. Part 135. Specifically, §135.85 .states the following, in part; 

§ 135.85 Carriage of persons without compliance with the passengercarrying provisions of this part. 

fhe following persons may be carried aboard an aircraft: without complying with 

the passenger-carrying requirements of this part: 

(a) A crewmember or other employee of the certificate holder. 

14 C.F.R. § 135.85(a). 

Although Part 135 does not provide a definition of the term Employee, a review of 

14 C.F.R. Part 121 (Appendix T, Section II - elTective at the time of the alleged violation), 

provides the following definition: 

Employee is a person who is hired, either directly or by a contract... 

14 C.F.R. Part 121, Appendix 1, Section II (emphasi.s added). 

Therefore, it is only reasonable to assume that the FA A has established, througli 

regulation, that the term Employee shall include crewmembcrs who arc independent 

contractors or employed by independent contractors (i.e., a person who is hired, either 

directly or by a contract). If the Administrator were to now attach a deferent definition to 

the terai Employee solely for the purpose of enforcing 14 C.F.R. §135.85, the result 

would be unreasonable and contrary to established law, precedent and policy. 

First of all, if the regulation is interpreted so that only direct employees are 

qualified for purposes of occupying a jumpseat during passenger carrying revenue flights 

under 14 C.F.R. Part 135.85, such a Hmited interpretation would be contrary to the plain 

meaning of the regulatory language. Second, a factual determination of whether a person 

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10/20/201 0 09:1 5 FAX 2024935142 FAA - DMS @018/02 0 

works ("or an air carrier as a direct employee or by contract, does not involve a safety of 

flight issue for which the Federal Aviation Administration .should be concerned. Lastly, 

ifonly direct employees (with or without full employment benefits), are eligible under \4 

C.F.R. §135.85, it would create an undue burden upon the FAA in its oversight of fliglit 

operations, requiring a determination of the employment status for each crewmember. 

Such a limited interpretation is unrelated to safety, unreasonable, and therefore, 

illogical. Accordingly, the resuh would be a nonsensical approach to regulatory 

cnlbrcement under the circumstances. 

CONCLUSION 

For the foregoing reasons. Applicant, Green Air re.spectfully request that the 

Administrator grant the Application for attorney's fees and other expenses pursuant to the 

FAJA. 

REQUEST FOR FURTHER PROCEEDINGS 

The Administrator's Order for Further Briefing addressed only the limited issues 

discussed herein. The remaining issues involve whether the FAA was substantially 

justified in charging Green Air with a violation of 14 C.F.R. § 119.5(1), §135.434, and 

§91,13(a); and whether the Agency was justified in seeking a $33,000 civil penalty. 

Therefore, pur.suant to §14,26 of the Procedural Rules (14 C.F.R. Part 14), Applicant 

hereby rospectfiilly requests that the Administrator order further proceedings, such as an 

informal conference, oral argument, additional written submissions, or an evidentiary 

hearing, if necessary for a full and fair resolution of the issues arising from the 

application and conducted as promptly as possible. 

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10/20/2010 09:15 FAX 2024935142 FAA + DMS @|019/020 

TOTAL FEES AND EXPENSES SOUGHT 

ANALYSIS OF ATTORNEY FEES AND EXPENSES INCURRED AS OF OCTOBER 

11, 2010, REQUIRED TO RESPOND TO THE ADMINISTRATOR'S ORDER FOR 

FURTHER BRIEFING. 

Description 

Legal Services 

Description of work: 

Amount 

16.4 

EAJA Rate 

$125 

Total 

$2,050.00 

10/5/2010 - Review Order for Further Briefing; Review file; Research law; Begin 

Draft Brief 

10/6/2010 - Research law; Revise Draft Brief 

10/8/2010 - Review and Revise Brief 

lO/n/2010 - Review and Revise Brief 

Time: 3.7 

Time: 5.3 hrs. 

Time: 5.2 

Time: 2,2 

Expenses $6.05 

Copies and postage. 

Total addition-.ll fees and expenses as of October 11,2010: $2,056.05 

I hereby certify under penalty of perjury that the infonmation provided in thi.s^^'^/ 

application is true and correct. 

Dated: October 11,2010 

GREOO^iY S- 'WINTON, ESQ. 

The At?iation Law Firm 

One Research Court, Suite 450 

Rockvine,MD 20850 

Tel: 301-294-8550 

Fax:301-294-2525 

Attorneys for Applicant 

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10/20/2010 09:15 FAX 2024935142 FAA DMS 1020/02 0 

CERTIFICATE OF SERVICE 

T hereby certify that I have this date served by regular U.S. mail, postage prepaid, an 

original and one (1) copy of the foregoing Applicant's Response to the Administrator's 

Order for Further Briefing addressed to; 

Attention: Hearing Docket Clerk, ACTC:-430 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Room 924A 

Washington, D.C 20.591 

And, further, that I have this date served by regular U.S. mail, postage prepaid, a copy of 

the foregoing Applicant's Response to the Administrator's Order for Further Briefing 

addressed to: 

Chri.stian Lewercnz, Esq. 

Office of Assistant Chief Coimsel 

FAA Eastern Region, AEA-7 

1 Aviation Plaza, Room 561 

Jamaica, NY 11434 

Tel: 718-553-3258 

Fax: 718-995-5699 

Dated: October 11, 2010 

GREGORYS^ ESQ. 

J

Aviation Liw4t+1 rm 

; Research C:ouri, Suite 450 

;kville, MD 20850 

._.: (301) 294-8550 

Fax:(301)294-2525 

Greg(ip,AviationLawExperts.com 

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