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-EPAHMNTOF 

.. rj;'t'^PO[?J^^'^lptf.§. DEPARTMENT OF TRANSPORTATION, "•" r . •-- . ^ 

L-..;;J<hTOPbRATl(}^DERAL AVIATION ADMINISTRATION. ."' - ^Z 1 '^J ^2. 

OFFICE OF HEARINGS 

2010 SEP IU P 1: U8 WASHINGTON, D.C. J* ^ 9 2010 

In the Matter of Empire Airways * , \,; w r. i:: i 

2009EA110039 

CP10EA0002 

Honorable Isaac D. Benkin 

Sim-01^ I 

AGENCY'S RESPONSE TO RESPONDENT'S NUNC PRO TUNC APPLICATION FOR AN 

AWARD OF ATTORNEY FEES AND OTHER EXPENSES PURSUANT TO THE EQUAL 

ACCESS TO JUSTICE ACT 

COMES NOW the Agency, by and through its designated representative, the Regional 

Counsel for the Eastern Region and his duly designated agents, and responds to Respondent's Nunc 

Pro Tunc Application For An Award of Attorney Fees and other Expenses Pursuant to the Equal 

Access to Justice Act (hereinafter "the Application"). The Agency submits that the Application must 

be dismissed on the grounds that it is untimely. In addition. Empire Airways ("Applicant") is ineligible 

for an award because it has not "prevailed" in the sense required by Equal Access to Justice Act 

(EAJA). In addition. Empire Airways has failed to submit the financial documentation required by 

EAJA. 

PROCEDURAL HISTORY 

1. On February 16, 2010, the Agency filed its Complaint in this matter. 

2. On March 24, 2010, a Notice of Appearance on behalf of Applicant was filed by Charles J. 

Casolaro, Esq. (hereinafter Mr. Casolaro). 

3. At no time in this proceeding did Mr. Casolaro ever withdraw as counsel. 
4. On June 1, 2010, a "Notice of Appearance and Substitution of Counsel," purportedly on behalf 

of Applicant, was filed by Gregory S. Winton, Esq. (hereinafter "Mr. Winton"). There was no 

indication that this substitution was consented to by either Applicant or Mr. Casolaro. The 

certificate of service for this notice indicated that it was not served on either Applicant itself or 

Mr. Casolaro. 

5. On June 22, 2010, Mr. Winton filed a Motion for Judgment on the Pleadings, purportedly on 

behalf of Applicant. 

6. On June 21, 2010, the Agency filed Complaint's Motion To Withdraw Complaint Without 

Prejudice, wherein the Agency conceded that it had initiated the case against the wrong 

corporate entity, and requested that it be permitted to withdraw the Complaint without 

prejudice for purposes of initiating the case against the correct corporate entity. 

7. On June 23, 2010, Administrative Law Judge's Order Dismissing Proceeding And Canceling 

Hearing (hereinafter "the Dismissal Order") was issued, wherein the Administrative Law Judge 

in this proceeding (AU), in response to the motion that was filed by the Agency on June 21, 

2010, stated "All that I can do now is to follow the dictate of §13.215 of the Procedural 

Rules, 14 C.F.R. §13.215 and dismiss this case with prejudice." In light of this dismissal, 

on June 23, 2010, the ALJ also issued an Order Dismissing Motion for Judgment on the 

Pleadings "for want of jurisdiction." The certificate of service for these Orders indicated that 

they were served on Mr. Casolaro, but not on Mr. Wmton. There was no appeal to the 

Dismissal Order. 
8. On August 6, 2010, Mr. Winton filed the instant EAJA application, purportedly on behalf of 

Applicant. In the Application, it was claimed that Mr. Wmton did not receive the Dismissal 

Order until July 26,2010. 

9. The sole purported financial disclosure with the EAJA application was a statement by Mr. 

Wmton that "In accordance with 14 C.F.R. § 14.03(b)(5), Applicant is a corporation with a 

net worth of not more than $7 million and not more than 500 employees at the time the 

adversary adjudication was initiated." There was no accompanying net worth exhibit. 

ARGUMENT 

(a) THE APPLICATION WAS FILED IN AN UNTIMELY MANNER AND 

THEREFORE MUST BE DISMISSED. 

Under 14 C.F.R. §14.20, an application may be 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." Under 14 C.F.R. §14.20(c) (3), "final disposition," for purposes 

of this proceeding, means "The date on which an unappealed decision becomes administratively 

final." Under 14 C.F.R. §14.233(a), a party has 10 days after service of a v^itten initial decision 

to file an appeal. In this case, the Dismissal Order was issued on June 23, 2010, and since the 

decision was not appealed, the final disposition of the case was 10 days later, or on Tuesday, July 

6, 2010.' Thus, Applicant was required to submit the EAJA application 30 days later, or by 

August 5, 2010. Applicant did not submit the application until August 6, 2010. Therefore, it 

was untimely. 

^ The 10* day after June 23 was July 3, which fell on a Saturday. July 4* fell on Sunday and July 

5* was a Federal holiday. Thus, the actual deadline for filing an appeal was Tuesday, July 6, 

2010. 

3 
Giving a respondent the right to file an EAJA application is, in effect, a waiver of 

sovereign immunity that "must be strictly construed in favor of the sovereign" and "not enlarged 

beyond what the statute requires." Escobar v. U.S. I.N.S., 935 F.2d 650 (4* Cir. 1991). In light 

of this principle, the courts have consistently held that the EAJA's 30-day time limit is 

jurisdictional and may not be waived. MonarkBoar Co. v. NLRB, 708 F.2d 1322 (8* Cir. 1983). 

Accordingly, the National Transportation Safety Board dismissed an EAJA application that was 

filed one day past the 30-day deadline. Steven D. Holloway v. Administrator, Federal Aviation 

Administration, Docket 137-EAJA-SE-l 1543. Similar, the EAJA application in this case, 

although filed only day late, should be dismissed. 

In the Application, it is claimed that the application should be accepted as timely because 

"...by no fault of Respondent or its counsel, Mr. Winton's name was never added to the judge's 

service list. Accordingly, this application is timely made as if the law judge's Order was served 

upon Mr. Winton on July 26, 2010, when he first received a copy via facsimile and email." While 

the ALJ, however, may not have had the Dismissal Order served on Mr. Winton on June 23, 

2010, he did have the Dismissal Order served on Applicant's attorney of record at the time, Mr. 

Casolaro.^ 

Under 14 CFR 13.204(b), "An attorney or representative who represents a party may file a 

notice of appearance in the action... and shall serve a copy of the notice of appearance on each 

party,..before participating in any proceeding governed by this subpart." Mr. Winton's "Notice 

of Appearance and Substitution of Counsel" filed on June 1, 2010 did not constitute a valid notice 

^ As indicated above, Mr. Casolaro initially filed a notice of appearance in February 2010 and 

never withdrew his appearance. 

4 
of appearance because it was not served on either Applicant itself or its counsel of record at the 

time, Mr. Casolaro, and thus was not "served on each party" as required. Thus, Mr. Casolaro 

remained the legitimate counsel of record for Applicant until the time the Dismissal Order was 

issued. Mr. Casolaro was served with the Dismissal Order in a timely manner, and there is no 

good cause for the delay in submitting the EAJA application. The Agency may have been 

mistaken in responding to motions purportedly filed by Mr. Winton and the ALJ may have been 

mistaken in ruling on these motions, but that does not negate the fact that Mr. Casolaro properly 

filed a notice of appearance and never withdrew it; that the notice of appearance that was 

purportedly filed by Mr. Winton was not served on Applicant or its counsel and was therefore 

improper; and that the ALJ continued to apparently regard Mr. Casolaro as the representative of 

Applicant because the ALJ continued to serve Mr. Casolaro with all his papers, including the 

Dismissal Order. All these facts support the conclusion that Mr. Casolaro remained the 

representative of Applicant, and that Applicant was thus properly served with the dismissal order 

of June 23, 2010 and submission of the EAJA application 41 days later was untimely. 

(b) APPLICANT HAS NOT PREVAILED IN THIS PROCEEDING IN THE SENSE 

REQUIRED BY EAJA. 

Under 14 C.F.R. §14.20, an application may be filed only when the applicant has 

"prevailed" in the proceeding. In the Application, it is correctly stated that the U.S. Court of 

Appeals for the District of Columbia Circuit, based upon the Supreme Court decision in 

Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human 

Resources, 532 U.S. 598 (2001), has distilled a three-part for determining whether an EAJA 
applicant has prevailed: (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 fees; and (3) the judicial 

pronouncement must be accompanied by judicial relief Turner and Coonan v. N.T.S.B., 608 F. 

3d 12; 2010 U.S. App. LEXIS 11648 (D.C. Cir. 2010). 

What Applicant does not mention, however, is that the Court in Turner and Coonan, in 

finding that the three-prong test had not been met, emphasized the fact that it was the FAA that 

unilaterally acted to end the adversarial relationship between the parties, leaving them where they 

were before the complaint was filed, and that the dismissal of the cases was "just an administrative 

housekeeping measure, not a form of relief, because the FAA did not need the ALJ's permission 

to withdraw a complaint." Id. As such, the judgment was not in favor of the party seeking the 

fees (i.e.. Applicant), but was merely an official stamp of approval on the Agency's withdrawal of 

the case. And the ALJ, in issuing the Dismissal Order, did not grant any relief to Complainant but 

was merely carrying out what the Agency sought: a dismissal of the case.^ 

Under 14 C.F.R. §13.215, "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 attorney withdraws the complaint or a party withdraws the 

request for a hearing and the answer, the administrative law judge shall dismiss the proceedings 

under this subpart with prejudice." Through its motion on June 21, 2010, the Agency effectively 

exercised its discretion - not requiring judicial approval - to withdraw the Complaint. By that 

' The fact that the Agency moved to withdraw the case without prejudice and the ALJ dismissed 

the case with prejudice is immaterial. As indicated in the Agency's motion, it sought to withdraw 

the complaint without prejudice only for purposes of initiating action against a different corporate 
action alone, the Agency effectively ended its adversarial relationship with the Applicant.. As 

indicated by the ALJ in the Dismissal Order, he had no choice at that point but to dismiss the case. 

Thus, the ALJ's dismissal of this case was just an "administrative housekeeping measure," as in 

Turner and Coonan, and should not be deemed to mean that Applicant has "prevailed" in this 

case under EAJA. 

(c) APPLICANT HAS FAILED TO SUBMIT THE REQUIRED FINANCL\L 

DOCUMENTATION 

Under 14 C.F.R. §14.11(a), "Each applicant except a qualified tax-exempt organization or 

cooperative association must provide with its application a detailed exhibit showing the net worth 

of the applicant and any affiliates when the proceeding was initiated." While Mr. Winton has 

signed a statement attesting that Applicant has a net worth of less than $7 million, there is no 

"detailed exhibit" demonstrating as such, as required by the EAJA regulations. Thus, the 

Application is defective and should be dismissed on that basis alone. 

CONCLUSION 

The Application must be dismissed because it is untimely; because Applicant has not 

entity. With respect to Applicant itself, the ALJ's Dismissal Order was no different fi-om what the 

Agency sought: a withdrawal of the complaint and dismissal of the case. 

7 
prevailed; and because it does not include required financial documentation. 

Respectfully submitted, 

Alfi-ed R. Johnson, Jr. 

Regional Counsel 

By: m/r^'^^/^'^' ^ Date: ?/^// ^ 

ZacharyM.Be' ' 

Attorney 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

Telephone: 718 553-3258 

Facsimile: 718 995-5699 
CERTIFICATE OF SERVICE 

I hereby certify that on this day copies of the foregoing Agency's AGENCY'S RESPONSE TO 

RESPONDENT'S NUNC PRO TUNC APPLICATION FOR AN AWARD OF ATTORNEY 

FEESAND OTHER EXPENSES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT 

were sent via first class mail and via facsimile to each of the following: 

Honorable Isaac D. Benkin 

OflSce of Hearings, M-20 

Room 5411 

U.S. Department of Transportation 

400 Seventh Street, S.W. 

Washington, D.C. 20590 

Telefax: (202)366-7536 

Gregory S. Winton, Esq. 

The Aviation Law Firm 

One Research Court, Suite 450 

Rockville, MD 20850 

Telefax: (301)294-2525 

Attention: Hearing Docket Clerk, AGC-40 (via first class mail only) 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Rom 924A 

Washington, D.C. 20591 

Date: 

SEP - 1 2010 ^rrC , 

L Hooks 

Paralegal Specialist 

OfiBce of Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434