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U.S . DEPARTMBNT OF TRANSPORTATION 

FEDERAL ftVlATION RDMINI3TRATT0N 

I n th e Mfttte r of: * DOCJcet No. /ij^iftA i t. , l ^ 

GAHT >T. T,F,E, * FAA EIR No. ^V\\l^\'^DObK f^tf/tf- QS'BC' 

Responflsnt, * 

* 

The Hon- Kichard C. Goodwin 

k k * -k * * 

COMPLRINftNT' 3 RESPONSE TO RirsPONnF.NT' 5 CLAIM 

FOR ATTORHY FEaS UNDER EA.TA 

COMES NOW the Cojnplainanr,, federal Aviation idmi nisi: rati on 

(FAA), by and through Counsel, and in its answer 10 Respondent's 

Application for Attorney's Fees and Other E^tpenses pursuant r.o the 

Equal access to Justice Act (EAJA) , 5 U.S.C S 504 et ZG':I. , offers the 

fol.l owina: 

•?TATFHFNT OF THE CASE 

The FAA alleged that Gary J. Lee qnd his brother, Michael P. Lea, 

uera paasangars on a Southwest flight from Phoenix, Arizona, to 

Ph.rladelphia, Pennsylvania, on February 22, 2005, and that their 

conduct (very iQUd talk poppared with profinity) waa of such magnitude 

that it interfered with the J'.I.J.gnt attendants' duties baoouse they had 

to focus their attention on the brothers to the excVusion of thair 

saroty related duties, and that the Lee Brothers' interference uich the 

fJ.ight antenciant's duties conatituted a violation of Section 171.580 of 

the Federal Aviacion Regulations (FARs). 

The Administrative Law judge (ALJ) initial decision found that 

Michael P. Lee had violated the r».R3 but also found that even though 

Gary J. I.e« participated in loud and profanity-filled r.3]i;ing with his 

brother, his behavior u^js less serious and did not warrant a. finding nl 

a violation. .-..,.,. „^,„ , 

:G£IVED 

OCT • 1^ 2006 

-cARIMG DOCKET 
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PREVAILING PARTY AKID SrjHST££riAL_JUST_IF.ICiTJON 

In his application, Gary J. Lee, the Applicant, requests raea.and 

expenoes under 5 U.S.C. 5 504<a)11), "in the above matter In which ne 

was a pi-eva.iling party ... on the grounds that the agency c position in 

the proceeding waa not suhpranrlally justilied and that cher» are no 

Bpccial circumstanreH which would make an award unjuot." Bligibilicy 

under the EAJA for a fee award arising out of an agency adjudication 

requires that the applicant be a prevailing party. However, an award 

cfln be denied, the statute providac, if there ie a showing that the 

agency's posirlcm waB subctancially justified or that special 

circumstances make an award unjust. 

An agency chat conduces an adversary adjudication Rha]1 award, to 

a prevailing party other than the United State.R, fees ana other 

ejcponeea incurred by that party in connection with that prQcaadtng, 

unlesa the adjudicative officer cf the agency finds that the position 

of the agency was subscanrial.Ty justlrled or that special circumstances 

mAke an award unjust, whether or not the poeition of the agency waa 

aubatantially justified shall be determined on the basis of the 

administrative record, as a whole, which is made in the adversary 

adjudication for wnlch fees and other sxpenaee arc =ou<jht. 

The FAA aoee not conzitut that Gary j, Lee ia the prevailing party 

in thl= case but the critical iesue for the ALJ to decide in 

detarmlning aii UAJA claim ia whether Che acency's poBicion was 

cubscantially justified at each acaqe of the proceedings. 

The Supreme Court has held that the "subecatit.l.an.y justiried" 

requirement applies to Che merits or the government's position, and can 

be satisfied if there is a "genuine dispute" or if th« agency's 
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poaicion can be "juHtifled to a degree chat could satisfy a reaconable 

person," The test of whether the governcnene'e position ie 

suhstanclally justifiea Is eeeentially ona oE reasonableneee in law and 

fact. Ac Buch, aqancy counsel "may avoid an award" by showing r.hat the 

agency'5 position was reasonable in law and fact. .?tie U.5. v. liO^tl^ 

Boxes of BonsJ Beef, 726 F- 2d 14S1 (Tenth Circuit 1984), cert, denied, 

-163 U.S. 325 (1954), where the court stated "to establish aubstantinl 

ju.";ti.ficdtior, there must have seen (1) a ro.:i.son5bl6 basis in fact Lo 

the facts alleged, (?) a reasonable basis in law for the theory the 

agency propounded, and (3) the fact.-; riJleged reasonabJ.y supported thc. 

legal theory advanced." Therefore, for the agency's position r.o be 

found substantially justified, it must be reaaonafale in both, foct and 

law; i.e., i:h<? facts alleged must have a reasonable basis in truth, the 

legal thsory propounded must be reasonable, and tha facts alleged must 

reasonably support that theory. See also f/.5, Je z v. Aamlnietratar, 

NTSB Order EA-3ei7 at 2 (1993) . 

Tn this case, roaeonable people may differ as Co whether Gary J, 

Lee's laeliavior, ny itself, wac sufficient to interfere with the flicrht 

attendants' duties. The facte indicate chat both brothcra were sitting 

together [albeit with one empty seat in becween them), both were loud 

and boisterous, and both were asked numerous times to keep it quiet and 

to stop the profanity. 

A reasonable person may encounter serious dlPtJ.cu.l.t.les in 

attempting to Quantify the specific conduct Of each brother, short of 

observing them in the courtroom. Which in this case the ALJ had Che 

apportunity to do. The conduct of both brothers caused the flight 

attendants to focus only on them to the exclusion of other safety 

related duties and thus, dietinguishing the specific act or words 
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attributable to Gary j . Lee from those attributable to Michael P. Lee 

was not poeeible chort of observing thetn in the courtroom, as the ALJ 

had the opportunity to do. 

At the hearing, the testimony Of the flight attendants and of one 

passenger wa.-^ very clear and consistent. All of thcia seated that both 

brothers were loud, boisterous, uged profanity, and refused to .stop 

their behavior despite many requests to do so. 

The ALJ perceived ('ary J. Lee's conduct as bsing quantitatively 

less serious and based on his perception, he dismissed this complaint 

against him. However, the quantitative level of Mr. Gary J. Lee's 

inappropriate behavior, which appears to have been a question of degree 

in the mind or the ALJ, should be evaluated as the quinteesencial 

question of fact, one that .1.3 w.l.tniri the exclusive province of tha ALJ 

as the trier of fact. 

The expected witnesses' testimony from the onset, dur.ing the 

depositions, and as offered at the hearing, did not differentiate 

between '.he conduct of the two brothers and there was no indication 

that Wr. Gary J. Lee had behaved much differently from Michael P. Lee.^ 

The transcript ±s replete with testimony from the riiglit. attendants 

(and one passenger) that indicates the flight attendants were busy 

"'handling both respondents.'' Therefore, the FAA waa sub.-stantiaJ.ly 

just.l.tieCi in initiating and continuing to pursue legal enforcement 

action againsi; both brothers since the expected te.stimony did not 

provide any basis for envisioning that the quantitative behavior of one 

brother would result in a dismissal of the FAA'S complaint against 

him. 

' Ms. Majjon tssTifled that after slie had asked Redpondcnts three or four times \o ciuitt down, .•she wcni to Ihc 

frout and lold M.i. riarmon. [empha.'sis acklcd], 'TVe Med e\ierythtng. I've asktd Ihem ioplaase he qulel 

Please don't airxe. Please Icwer}'c>ur voice. Just, you know, )'ou ca/r'l act thh it'oy. You're bolherin^other 

psopl«. 1 don't knew what cbe to do. (TR-77 and TR-78)." 
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The TLLJ'g cJecision shows that the ho realized th^t Mc. Gary J. Lee 

was .in active parcicipant^ in the disruptive behavior and the ALJ'a 

decision rnaVes rcfcrencer; to "them" and '"their" uhlch by definition are 

in the plura.l rather than the singular form. Moreover, the ALJ'6 

decision states: 

While Gary Lee participated in loud and profanity-filled 

tolkinq with his brother tlie evidence railed to sho" that 

his conduct by itsolf caused interference with the duties 

of any crewmember-the unusual and prolonged attentions paid 

to the brothers by member or the flight crew stemmed in any 

significant measure ftoii^ Llic behavi.or or actions ol Gary J. 

Lee. 

In fact, the ALJ rioesTOt distinguish a quantitative level for the 

conduct of Gary J. Lee until he dii^misses the FAA' S complaint against 

Gary J. Lee. The ALJ makes it clear that, he be.lleved rjary J. Lao's 

behavior was lees serious than Michael P. Lee. However, that Is a 

quant.ltativG level of behavior question, reserved for the ALO' as the 

trier of fact. 

The iesue of ottorney fees under the F.AJA was most recently 

evaluated Jn the Mattor o f Lis a iSohrden, F/iA DCCICRI, NO. CPOfiFAOOOe, DMS 

NO. FAA-2D04-2dl54. In that case, the FAA pursued legal ncr.iori and 

alleged that Mrs. Bowden had (1) failed to follow orewmcmbera' 

inatructions and (2Jinterfered with a crawmember in the performance of 

her duties. In that case, the ALJ found that Mrs. Bowden ua.^i liable for 

one but not for both violation--) and reduced the civil penalty. Tn the 

subsequent Claim for attorney fees under the EAJA, the ALO pointed out 

that in that case, prior to the filing of the complaint, the only 

evidence in the FAA's poaaessJon consisted ol the flight attendant's 

^ The ALJ'S Iililiul Decision, ,nT page 2 states at vurioua pointg: they were somcyvhiil loud and boi.<;terpus,.. 

more iMdly than before, Ltinguagc was liberally pcpperwl wilh profanity... a tew paesengei-j coinpliiincd 

about both the rnovcrsation and ihc docihel level and the ccMisiaiu oursinif:... Reopondenta reacted wiili 

irriotiori and agitation,.. they reaumcd tbeir loud and ntde talk.... AnH, nn page ? of the Al-J's Initial 

Decision, lie stale."!"Ms, M"iw)n...had tried everythingiha could think ofw get Ui«sapaai)Mi];en to comply.... 

Thfiy became contrile.... 
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incident report and the "q<jostionable conduct" attributed to Mrs. 

Bowden, e.g., that She made several requests to the flight attendant 

about going to comfort her -on who was seated in first class and nothing 

more. 

And in Application of Pichard W. Kuhling, FAA Docket CP03GL0CO2, 

DM.s No. FAA-2003-157e9, 2003 WL 231184S€ (D.O.T.) at pages 3 and 4, the 

ALJ darned the app.l.lcatlon even though the Applicant had prevailed in his 

appeal from the Initial Decision to the Administrator. In th;i1-. case, the 

ALJ indicated that passive resistance may not rise to the level of 

interference with a flight attendants' duties but that whether Mr. 

Tfuhllng'3 interference was too inconsequential to moke out A violation 

wn.^ a matter or a little more or a little less. Moreover, the ALJ stated 

that passenger Ini-.erference could wall; a factual fine line, about which 

reaaonoble people can differ, r.har, the agency was entitled Lo ""err" on 

Che side of bringing a close case to trial to fulfill its mandate of 

en.forcing/enauring air safety, and concluded that the agency was 

substantially justified in bringing and maintaining the action. 

In the instant case, the FAA'i evidonce consisted of the 

statements by three flight attendants and one paisetiger, who hsd no 

reason to exaggerate. All the statements described the conduct or both 

brothers as being loud and obnoxious, and all of the witnesses Indicated 

that the night attendants were solely focused on these two passengers, 

to the exclusion nf other autxes. a.s in KuhlSng^ the agency had a duty 

to bring and maintain the ar:tion in order to fulriJi it2 duty to enforce 

and ensure air safety. Further, as in KubJing, the Tacts walk a fine 

line and the decision of the ALJ was nl.io about '^a little more or a 

little less." Tnatefore, it was reasonable in law and in fact for the 

FAA to rely on the statements hy tho night attendants and paaacnger in 

pursuing action against Gary J, Lee. 
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Ft:ES CLAIMED ARE EXCESSIVE 

In the a.Tternatlve, if the ALJ should deem Gary J. Leo's claim to 

be appropriate, the amount rlfiimed is unreasonable tor the following 

reasons. 

1- The amount of time and expenses allocated to each re.'^pnnd.ent 

was not clearly segregated in the claim. It is insufficient 

to Simply asssrt chat it is one-half of the 128 hours the 

respondent's counsel claims to t^SiV& expended in preparing and 

processing both casca. 

2 . There are a number of fees and expcnse.-i claimed that a 

reasonable person would find to be excessive. For instance, 

attorney fees for purely clerical tasks/ exclusive use of 

Pedes overnight de.Uvery services in addition to fax delivery, 

in light of the Rules of Pror:f»dure that provide Cot servica of 

all dociimentfl by US Mail and merely pcrmitK the use of 

overnight delivery couriers that is, the exclusive use of an 

overnight aellvery courier appears to be an exceesivc expense 

when compared to the cost oT certified mall (and fax), In 

this cQ.ie, the U.S. Mail was readily available and thus, it 

would seem unjustified to use the more expensive overnight 

courier. With respect to these expenses, the FAA requests 

that the ALJ deny these expenses, or in the alternative, that 

these expen.sPS be adjusted downward, 

3. Respondent's counsel failed to segregate hou much time he 

devoted to the hearing on the matter against Gary J. Lee and 

haw much time he devoted to the hearing on the matter against 

Michael P. Le!^. 
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4. Moreover, expenses for 4 and •^ hours of attorney's time for a 

^^moc:k v.rlal" in a case uhero the facta were very simple would 

Seem to be cxce.'islva to a reasonable parson. 

5, Respondent claims fee.'; for approximately ed hours of work for 

what amounts to a very simple factual case. 

fi. Last, but not least, there arc numerous internal conferences 

between Respondent's counsel and. other members of his firm, 

which ngain, would appear tc be uiireaaon-Tble given the .limple 

facts involved in this casfe. 

I n the /Matter o f Lis a Bowden, FAA Docket fJo. rp05EA0D06, VMS No. 

FAA-2004-241S4, the ALJ evaluated a pro-rata.award of attorney fees, and 

which should, be hased on the amount of time the nttorney had dedlcaited to 

the issue on which the Respondent had prevailari. In that case, the ALJ 

awarded foes for about 40.5 hours and stated that such amount of time wa-i 

not unreasonable. The facts in that ca.ie were more complex than tha 

facts in the instant case and therefore, this Re.ipondent's application 

for fees for (54 hours of work would appear unreasonable. 

PRO-BOMO 

On the issue of whether attorney fees should be permitted when it 

is clear from Respondent's counsel that his law firm orferad the legal 

.services on a pro-bono basi-s, Respondent's counsel kindly orrered three 

Cases that previou.t.iy dealt with aimilar issues. All three cases are 

dietinguishoble from the case at hand and they w«rc decided more than 

eight year© ago and that that the claimant in those cases were in a very 

dissimilar position as the claimant in the instant case. That is, the 

claimants In those cases had not intentionally vinlated the law. The 

undersignp.d' s re.search ol the r.ases in this forum has nor. yielded any 

claims for attorrisy tees under EAJA, where the claj.mant was ownrded 

attorney fees under the T;AJA for legal .•services received on a pro-bono 
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basis and thus, il, wou.ld appear that the instant claim is one of firat 

impression in this forum. 

In SEC V. Coitt36v Corporezion. 908 P.?d l^aOT (T"*" Clr. 1990), the 

court .stated that awards should be available where the burden of attorney 

fees wouJ.d have deterred the litigation challenging the govei'nniciit's 

actions, but not where no SUCli deterrence exists. The facts in that case 

were of a complex nature because of the numerous complicated and 

interrelated SEC regulation.'^ involved. In ^C/ A. iViJ.'5on, Inc . v. Ccn^x^l 

services Jld/oi/iistration, 12S F.3d 1406 (Fed Cir. 19-^7), the fdCts were 

also or a complex nature and involved highly technical issues of fact 

procurement law and , which tno litigant might have not pursued action 

without the assistance nf an attorney. Last, in Nstiana l Association of 

Msnvfscturcrs v. J?eparttient of Lahnr, 1.59 F.'i"' 597 (D.C. Cir. 1998), thci 

court indicated that the Department of Labor wriived the Claim chat 

manufacturer's association did not incur attorney fees bccau.-ie 

association was represented by law firm acting pro bono. 

In all three cases cited by Reapondant, the claim for attorney 

fees involved i.i.-sues of public interest, and/or the iiiuea ware of such 

complex nature that litigation would have been deterred w.lchout the 

assistance of an attorney. 

Tlie facts in the instant case were straightforward, simple, did 

not involve high.Ty technical mattar.?, and raised one simple factual 

question; that ia, whether the conduct OC the P.espnndent was so 

distracting as to interfere with the flight firrendant's flutiea. The 

flight attendants repeatedly told both respondents that their conduct waa 

un,^cceptat).i e and that it had to stop. 

In sum, ir Che ALJ should deem this Respondent's claim for 

attorney fee.-^ ispproprinrs, we respectfully request, that tha AljJ carefully 
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consider the exceasive natur e of the fees and expenses claimed and adjust 

the award downward. 

WHEREPORK- for the reasons state d above, th e FAA respectfull y 

requests tha t applicant's ::Jaim for attorne y fees under the EAJA be 

denied and submits tha t an award of attorne y fee s under rhefie 

circumotance s would be un:iu3t. 

T,rNf;TTE WORD 

Regional Counsel 

Southwe.st 

B Y : 

5tell,ajnar£3 Wi l 11 aaT-~TTq 

^_5«rf?ty Enforcement Branch 

•2601 Meacham i=i.i.vd., R-P 

Port Worth, Texaa 76137-O007 

Telephone; 817-222-5081 

Facsimile : 817-222-5092 

Date: Bp£JM. 

n 0 
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SERVICE LIST 

OBffi ORIGIKAI. 6 OOT CQgY 

CERTiriED MAIL - RETURN RECEIPT REQUESTED 

The Ponorable Richard c. i^oodwin 

Administrative Law Judge 

Office of Heoringn, M-20, Room '5111 

U. S. Department of Transportation 

400 .9eventh Street, S.H, 

Washington, DC 20590 

Talaphone: 202-36e-2l3& 

Facsimile: 202-366-7536 

QUE COPT 

CERTIFTED MAIL - RETURM RliCEIFT REQUESTED 

Hearing Docket 

Federal Aviation Administration 

BOO Independence Avenue, S.H. 

Washington, DC 20591 

Attention: Hearing Docket Clorlc, AGC-430 

Wilbur Wright Building - Room 2014 

CERTIFIED MAIL - RETURN RECEIPT REQUESTED 

Alexander Anolikr Esq, 

21C7 Van Ness Ave., Suice 300 

San Francisco, CA 94109-2572 

Telephone: -f 15-673-3333 

Facslmlte: ^la-brA-JEd S 

Arxecn C. Ayala, Pj^gram Analyst 

Safety Enforcemenv, branch 

(817) 222-5087 

f^^9-0l . 

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