U. S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

APPLICATION OF 

EMPIRE AIRWAYS 

For fees and expenses under the 

Equal Access to Justice Act 

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APPLICANT'S REPLY TO THE AGENCY'S ANSWER ]E 

TO EQUAL ACCESS TO JUSTICE ACT APPLICATION 

AND REQUEST FOR FURTHER PROCEEDINGS 

COMES NOW, Empire Airways, Applicant herein, by and through undersigned 

counsel, pursuant to §14.23 of the Procedural Rules (14 C.F.R. Part 14), and hereby 

replies to the Agency's Answer to its Application for fees and expenses filed pursuant to 

the Equal Access to Justice Act (EAJA). Furthermore, pursuant to §14.26 of the 

Procedural Rules (14 C.F.R. Part 14), Applicant hereby respectfully requests that the 

Honorable Administrative Law Judge 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. 

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

receive an EAJA award; whether the claimed attorneys' fees and expenses are reasonable 

under the circumstances; whether special circumstances make an EAJA award imjust; or 

whether the agency was substantially justified in prosecuting this matter at each stage of 

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the proceeding, those challenges have been waived. As a result, sole remaining issue is 

whether Applicant is the prevailing party. Since the Agency has not and cannot estabUsh 

that Applicant is not the prevailing party, the EAJA application must be granted in full. 

In support thereof, Applicant states the following: 

PROCEDURAL HISTORY 

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

2. On March 12,2010, Applicant filed an Answer, asserting the affirmative defense 

that "Empire Airways, at all relevant times herein, was not the owner or operator 

of a Diamond DA-20 aircraft, identification number N383CA" (the subject 

aircraft in question). 

3. As a result, the Agency was aware since March 12,2010, that Empire Airways 

was not the company that committed the alleged violations. Nevertheless, the 

Agency continued to needlessly prosecute this matter against Empire Airways. 

4. On March 24,2010, a Notice of Appearance was filed by Charles J. Casolaro, 

Esq., on behalf of Empire Airways. 

5. Between May 18 and May 24,2010, a series email exchanges and a letter from 

John Zaremba, President of Empire Airways, were directed to Agency counsel, 

Zachary M. Berman, Esq., advising the Agency that Gregory S. Winton, Esq., had 

been retained by Empire Airways in this matter. See Exhibit 1 and Exhibit 2. 

6. On June 1,2010, aNotice of Appearance and Substitution of Counsel was filed 

by Gregory S. Winton, Esq., on behalf of Empire Airways. 
7. Following the Notice of Appearance and Substitution of Counsel filing on Jime 1, 

2010, Agency counsel directed all future filings, notices, and correspondence 

concerning this matter to Mr. Winton's office on behalf of Empire Airways. 

8. Afler Jime 1, 2010, former counsel, Mr. Casolaro was no longer included on the 

service list by either Mr. Winton or the Agency. However, unbeknownst to Mr. 

Winton, the Hearing Docket Clerk and Law Judge's office did not substitute Mr. 

Winton for Mr. Casolaro on the service list. 

9. On Jime 21,2010, the Agency filed a Motion to Withdraw Complaint Without 

Prejudice. In its Motion to Withdraw, the Agency acknowledged that ^Hhe 

company thai committed the alleged violation was not Entire Airways^ 

10. By Order served on June 23,2010, the Honorable Isaac D. Benkin, 

Administrative Law Judge, dismissed the proceedings and cancelled the hearing, 

stating the following: 

All that lean do now is to follow the dictate of §13.215 and dismiss this 

ease with prejudice. 

11. On June 23,2010, the above-described Order Dismissing Proceeding and 

Canceling Hearing was served upon Mr. Casolaro, on behalf of Empire Airways. 

Mr. Winton never received a copy of the Order. 

12. On July 1,2010, the Honorable Isaac D. Benkin, Administrative Law Judge, 

issued an Order on Notice of Withdrawal of Complaint. That Order was also 

served upon Mr. Casolaro, on behalf of Empire Airways. Mr. Winton never 

received a copy of the Order. 
13. On July 6,2010, another Notice of Appearance was filed by undersigned counsel, 

Gregory S. Winton, Esq., on behalf or Respondent, Empire Airways. 

14. Thereafter, on July 26,2010, the Honorable Isaac D. Benkin, responded to an 

email from Mr. Winton regarding the status of the case. The law judge stated the 

following: 

Dear Mr. Winton: 

You need to read the orders and notices I issue in your cases. 

Exhibit 3. 

It is abundantly clear from the law judge's email that he was also imaware that 

Mr. Winton had never been served with copies of the Notices and Orders. 

15. Immediately following receipt of the above email, Mr. Winton contacted the 

Hearing Docket Clerk in order to determine which orders and notices the 

Honorable Judge Benkin had issued in the case. 

16. As such, it was not until July 26,2010, that Mr. Winton learned he had not been 

served with any of the law judge's Orders. 

17. On July 26,2010, Mr. Winton was served with copies of the law judge's orders 

by facsimile transmission. See Exhibit 4. 

18. Although Agency counsel was aware that Mr. Winton had never received copies 

of the law judge's Orders, no attempt was made to rectify the oversight. 

19. On August 6,2010, Empire Airways, by and through undersigned counsel, filed 

an Application for attorney fees and Expenses Pursuant to the Equal Access to 

Justice Act. 
ARGUMENT 

I. THE EAJA APPLICATION WAS TIMELY FILED. 

As more fiilly discussed herein, the Application for attorney fees and expenses 

was timely filed considering the date on which imdersigned counsel received copies of 

the law judge's orders originally served on June 23,2010, and July 1,2010. Following 

the appearance of undersigned counsel on June 1,2010, the Agency attorney immediately 

stopped serving former counsel, Mr. Casolaro, and only served Mr. Winton with all 

future Pleadings and Notices. Notwithstanding the Agency's acknowledgement of Mr. 

Winton as counsel of record in the case. Agency counsel now argues that the law judge's 

sole service upon former counsel, Mr., Casolaro, should suffice to bar Applicant from 

filing an otherwise timely EAJA Application. Such an argimient is defies logic and lacks 

any basis in law or fact.. 

Pursuant to 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 written initial decision to file an appeal. In this case, 

the Administrative Law Judge's Order on Notice of Withdrawal of Complaint was served 

on July 1,2010. Since the July 1,2010, Order was not appealed, the final disposition of 

the case was 10 days later, or on Monday, July 12, 2010\ Thus, Applicant was required 

to submit the EAJA application 30 days later, or before August 11,2010. Since Empire 

' The 10* day after July 1,2010, fell on a Sunday, July 11,2010. Therefore, the last date for filing an 

appeal was Monday, July 12,2010. 
Airways filed an Application for attorney fees and expenses on August 6,2010, the 

Application was timely filed. 

Nevertheless, if the Honorable Law Judge determines in this case that the final 

Order was served on June 23,2010 , Applicant's counsel did not receive a copy of that 

Order until July 26,2010. Therefore, in the interest of judicial fairness, the service date 

of the Order should be calculated from July 26,2010. In that case, the Application was 

timely filed. 

If the Application is denied as a result of an untimely filing. Empire Airways will 

be unduly prejudiced by no fault of its own or that of its counsel, Mr. Winton. 

II. APPLICANT HAS PREVAILED 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. Highway Equip. Co. v. 

FECO, Ltd. 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 F.3d 704, 708 (7th Cir. 2003). These cases have held as much 

precisely because a voluntary dismissal with prejudice "effects a material alteration of 

[the] legal relationship with the other parties, because it terminates any claims [the 

plaintiff] 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. I Bar-B-Que 

Restaurant, 771 F.2d 521, 525 (D.C. Circ 1985) ("In contrast to a plaintiff who 

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

^ Administrative Law Judge's Order Dismissing Proceeding and Cancelling Hearing. 
enduring victory. Noxell's suit stands dismissed, and Noxell is forever barred from 

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

Here, Empire Airways achieved a judicially sanctioned alteration in the parties' 

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

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. Empire Airways 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 caimot be squared with the Supreme Court's 

holding in Buckhannon. 

The Agency's reliance upon the holding in Turner and Coonan v. N.T.S.B., 608 F. 

3d 12; 2010 U.S. App. LEXIS 11648 (D.C. Cir. 2010) is grossly misplaced. The EAJA 

application filed by Captains Turner and Connan arose under the National Transportation 

Safety Board's Rules of Practice, 49 C.F.R. Part 821 and Part 826. The present case is 

controlled by the Rules of Practice codified at 14 C.F.R. Part 13 and Part 14. 

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

Turner and Connan, the Court found that the cases were not dismissed with prejudice. 

By contrast, in the present case, following voluntary 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 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. 

14 C.F.R. §13.215. 

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

the following, in part: 

(a) An [EAJA] 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, or service of the order of the Administrator in 

a proceeding under the AMS. 

(c) For purposes of this part, final disposition 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. 

14 C.F.R. §14.20 (emphasis added). 

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

proceedings initiated by the FAA, considers a '^voluntary dismissal" to be a "final 

disposition" triggering the time to file an Application under the EAJA. Notwithstanding 

the above, the Agency has not and cannot cite any authority to support its position that a 

voluntary dismissal, with prejudice under Rule 13.215, is not insufficient to file an EAJA 

application under Rule 14.20. 

Therefore, the Application should be granted in full. 

8 
A. 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 determining 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 

result of defendant's unilateral acts. See Id. at 604. 

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 counsel against holding that the 

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

corresponding alteration in the legal relationship of the parties. 

Id. at 605 (emphasis in original). 

The 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 plaintiff failed to obtain any judicial relief on the merits 

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 nonjudicial '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 ordered termination of 

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

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

Thus, 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 

preclusive judgment is entered. See Id. at 615-619. 

B. 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 EAJA.^ Specifically, Buckhannon sets the 

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

3613(c)(2) and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12205. 

10 
minimum standards for prevailing party status under the EAJA. "[T]he Supreme Court's 

reasoning in 'Buckhannon is presumed to apply generally to all fee-shifting statutes that 

use the prevailing party terminology.'" Doe v. Boston Pub. Schs., 358 F.3d 20,25 (1st 

Cir. 2004)); see also Ma v. Chertoff, 547 F.3d 342, 344 (2d Cir. 2008). 

The 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. at 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 

"settlement agreements enforced 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 

sanctioned change." Id. at 605. 

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

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

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

11 
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 Court emphasized three related factors. The first was that the 

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

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 Supreme Court in Buckhannon did 

not hold that disposition other than a final judgment on the merits can confer prevailing 

party status. 

C. Several United States Circuit Courts of Appeals Have Recognized 

That PrevaUing Party Status Does 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 conferred prevailing party status on plaintiffs 

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

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

The Second Circuit in Vacchio v. Ashcroft, 404 F.3d 663 (2d Cir. 2005), expressly 

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

12 
fmally adjudicated the merits of plaintiff s 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 are not an 

exclusive list. 

Id. at 674 (quoting Pres. 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 

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

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 Roberson v. Giuliani, 346 F.3d 75 (2d Cir. 2003), the Second 

Circuit expressly rejected a narrow reading of 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 fees, so long as 

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

added); see also Perez v, Westchester County Dep't ofCorr., 587 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 two 

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

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

The majority of circuits to have considered the issue have refused to construe 

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

13 
on the merits. See, e.g., Dearmore v. City of Garland, 519 F.3d 517, 521 (5tii Cir. 2008) 

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

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

Daytona Beach, 353 F.3d 901, 905 (11th Cir. 2003) (concluding 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 

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

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 Hous. Autk, 290 

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

The Ninth Circuit has expressly rejected overly narrow interpretations of 

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

are examples ... but they are not the only examples" of judicial action sufficient to 

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

Cir. 2002) (emphasis added); see also Carbonell v. INS, 429 F.3d 894, 899 (9tii Cir. 

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

action otiier than a judgment on the merits"); Richard S. v. Dep't of Developmental 

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

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

14 
'"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 plaintiff,'") (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 

"illustrative, not exhaustive" 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. Preliminary 

relief caimot 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 ot Buckhannon is Unreasonable and 

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 

EAJA applicant of prevailing party status by a voluntarily withdrawal of its action in 

15 
order to avoid judicial dismissal, fundamentally undermines Buckhannon, which rejected 

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

essence, this would permit 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 aimul the impact of judicial orders by dismissing at the eleventh hour. It is 

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

Accordingly, the Honorable Law Judge should grant the AppUcation for fees and 

expenses imder the EAJA. 

E. A Voluntary Dismissal With Prejudice is a Complete Adjudication Of 

the Claims. 

In the present case, the FAA's voluntary 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., etal. v. United States, etal, 2010 Ct. hiti. Trade Lexis 7; SLIP 

OP. 2010-08 (citmg 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 prejudice 

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

16 
withdrawal was "conclusive in practical effect" since the Agency was unable to bring 

further suit against Empire Airways, concerning the same alleged regulatory violations. 

The FAA is now attempting to stretch Buckhannon too far by suggesting the 

proposition that abandoned claims can be resurrected in subsequent suits by filing a 

voluntary dismissal in the first action. Even where a second action is not barred by res 

judicata, the FAA's express abandonment of charges, which is obtained as a direct result 

of the law judge's order terminating the proceeding with prejudice, materially alters the 

parties' legal relationship during the pending action, 

CONCLUSION 

For the foregoing reasons. Applicant, Empire Airways respectfully request that 

the Honorable Administrative Law Judge grant the Application for attorney's fees and 

other expenses pursuant to the EAJA, 

NET WORTH STATEMENT 

Applicant hereby supplements its Application for fees and expenses with the Net 

Worth Statement attached hereto as Exhibit 5, 

REQUEST FOR FURTHER PROCEEDINGS 

Pursuant to §14,26 of the Procedural Rules (14 C.F.R. Part 14), Applicant hereby 

respectfully requests that the Honorable Administrative Law Judge 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. 

17 
TOTAL FEES AND EXPENSES SOUGHT 

Attorneys' fees and expenses sought to date in the amount of $4,980.00.^ 

ANALYSIS OF ATTORNEY FEES AND EXPENSES INCURRED AS OF 

SEPTEMBER 20,2010, REQUIRED TO REPLY TO THE ADMINISTRATOR'S 

ANSWER TO APPLICATION FOR ATTORNEY'S FEES AND COSTS PURSUANT 

TO THE EQUAL ACCESS TO JUSTICE ACT (EAJA) AND REQUEST FOR 

FURTHER PROCEEDINGS. 

Description 

Legal Services 

Description of work: 

Amount 

12.3 

EAJA Rate 

$125 

Total 

$1,537.50 

9/16/2010 - Review FAA Answer to EAJA Application; Research Law; Review 

file. Review NTSB and FAA Rules of Practice, 

Time: 2,8 

9/19/2010 - Review FAA Answer to EAJA Application; Research Law; Review 

file. Begin Draft Reply, 

Time: 5,3 hrs, 

9/20/2010 - Review FAA Answer to EAJA Application; Research Law; Review 

file; Review and Revise Reply, Review NTSB and FAA Rules of Practice, 

Time: 4,2 

Expenses $103.05 

Copies; fax; FEDEX and postage. 

Total fees and expenses as of September 20,2010: $6,621.00 

1 hereby certify under penalty of perjury that the information provided in this 

application is true and correct. 

* Amount includes fees and expenses incurred to Defend this action and to prepare the EAJA Application. 

18 
Dated: September 20, 2010 

submitted. 

LINTON, ESQ, 

f Aviatipd Law Firm 

rch Court, Suite 450 

RocMlle, MD 20850 

Tel: 301-294-8550 

Fax: 301-294-2525 

Attorneys for Applicant 

19 
i 

CERTIFICATE OF SERVICE 

I 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 Reply to the Agency's Answer to 

Equal Access to Justice Act Application addressed to: 

Attention: Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

800 Independence Avenue, S,W, 

Room 924A 

Washington, D.C. 20591 

And, further, that I have this date served by FEDEX, postage prepaid, a copy of the 

foregoing Applicant's Reply to the Agency's Answer to Equal Access to Justice Act 

Application addressed to: 

Honorable Isaac D, Benkin 

Office of Hearings, M-20 

Room 5411 

U.S, Department of Transportation 

400 Seventii Street, S.W. 

Washington, DC 20590 

Tel: (202) 366-2132 

Fax: (202) 366-7536 

And, further, that I have this date served by FEDEX, postage prepaid, a copy of the 

foregoing Applicant's Reply to the Agency's Answer to Equal Access to Justice Act 

Application addressed to: 

Zachary M. Berman, Esq. 

Office of Assistant Chief Counsel 

FAA Eastern Region, AEA-7 

1 Aviation Plaza, Room 561 

Jamaica, NY 11434 

Tel: 718-553-3258 

Fax:718-995-5699 

Dated: September 20,2010 

GR^(^R>^. WINTON, ESQ. 

The Aviation Law Firm 

One Research Court, Suite 450 

Rockville,MD 20850 

Tel: (301) 294-8550 

Fax: (301) 294-2525 

Greg@AviationLawExperts.com 

20 
EXHIBIT 1 
Greg Winton 

From: 

Sent: 

To: 

Co: 

Subject: 

j.zaremba@empireairways.com 

Tuesday, May 18, 2010 8:55 PM 

zachary.berman@faa.gov 

Greg Winton 

New counsel 

To 

Office of the Eastern Regional Counsel (FAA) 

1 Aviation Plaza 

Jamaica, NY 11434 

Dear Mr Berman, 

Please be advised that as of 5/1/2010 Mr. Greg Winton has been retained by Empire as 

general counsel.He will be representing Empire in any existing and in all future matters 

concerning the FAA 

thank you for your consideration 

John Zaremba 
Page 1 of 1 

Greg Winton 

From: zachary.berman@faa.gov 

Sent: Wednesday, May 26, 2010 11:55 AM 

To: j.zaremba@empireairways.com 

Cc: Greg Winton 

Subject: Re: New counsel 

I still need a letter saying that Mr. Cassoiaro is no longer representing you-otherwise, I have to assume that he is 

still representing you. 

Zachary M. Berman 

Attorney 

Office of the Eastern Regional Counsel (FAA) 

1 Aviation Plaza 

Jamaica, NY 11434 

Phone: (718)553-3258 

Telefax: (718)995-5699 

From: j.zaremba@empireairways.com 

To; Zachary Berman/AEA/FAA@FAA 

Cc: Greg Winton <greg@aviationlawexperts.com> 

Date: 05/18/2010 08:55 PM 

Subject: ^ ^ """"^^^ 

To 

Office of the Eastern Regional Counsel (FAA) 

1 Aviation Plaza 

Jamaica, NY 11434 

Dear Mr Berman, 

Please be advised that as of 5/1/2010 Mr. Greg Winton has been 

retained by Empire as general counsel.He will be representing Empire 

in any existing and in all future matters concerning the FAA 

thank you for your consideration 

John Zaremba 

9/20/2010 
Greg Winton 

From: j.zaremba@empireairways.com 

Sent: Wednesday, May 26, 2010 2:14 PM 

To: zachary.berman@faa.gov 

Cc: greg@aviationlawexperts.com 

Subject: Re: New counsel 

I will send it as soon as I arrive back at the office .Unfortunately 

that will not be until Friday. In the mean time please allow Mr 

Winton to act as my counsel. 

regards 

John Zaremba 

Quoting zachary.berman@faa.gov: 

> Can I just have a signed letter w/letterhead again? 

> 

> 

> Zachary M. Berman 

> Attorney 

> Office of the Eastern Regional Counsel (FAA) 

> 1 Aviation Plaza 

> Jamaica, NY 11434 

> Phone: (718)553-3258 

> Telefax: (718)995-5699 

> 

> 

> 

> 

> 

> From: 

> j.zaremba@empireairways.com 

> 

> To: 

> Zachary Berman/AEA/FAA@FAA 

> Cc: 

> greg@aviationlawexperts.com 

> Date: 

> 05/26/2010 12:04 PM 

> Subject: 

> Re: New counsel 

> 

> 

> 

> Mr. Berman, 

> 

> Mr. Cassoiaro 

> 

> is no longer representing Empire in any matter concerning the FAA or 

> any other matter . My counsel is Greg Winton . You may consider this 

> an official document reflecting the change. 

> 

> thank you for consideration 

> John Zaremba 

> 

> Quoting zachary.berman@faa.gov: 

> 

» I still need a letter saying that Mr. Cassoiaro is no longer 

> representing 

>> you-otherwise, I have to assume that he is still representing you. 

>> 

>> Zachary M. Berman 

1 
>> Attorney 

>> Office of the Eastern Regional Counsel (FAA) 

>> 1 Aviation Plaza 

>> Jamaica, NY 11434 

» Phone: (718)553-3258 

» Telefax: (718)995-5699 

>> 

>> 

>> 

>> 

>> 

>> From: 

>> j.zaremba@empireairways.com 

>> 

>> To: 

>> Zachary Berman/AEA/FAA@FAA 

>> Cc: 

>> Greg Winton <greg@aviationlawexperts.com> 

» Date: 

» 05/18/2010 08:55 PM 

>> Subject: 

>> New counsel 

» 

» 

>> 

>> To 

>> 

>> Office of the Eastern Regional Counsel (FAA) 

>> 1 Aviation Plaza 

» Jamaica, NY 11434 

>> 

>> Dear Mr Berman, 

>> 

>> Please be advised that as of 5/1/2010 Mr. Greg Winton has been 

>> retained by Empire as general counsel.He will be representing Empire 

>> in any existing and in all future matters concerning the FAA 

>> 

>> thank you for your consideration 

>> 

>> John Zaremba 

>> 

>> 

>> 

>> 

> 

> 

> 

> 

> 

> 
Page 1 of 1 

Greg Winton 

From: zachary.berman@faa.gov 

Sent: Friday, May 21, 2010 10:51 AM 

To: j.zaremba@empireairways.com 

Cc: Greg Winton 

Subject: Re: New counsel 

Can I please have a signed letter w/ Empire Airways letterhead to that effect? Thank you. 

Zachary M. Berman 

Attorney 

Office of the Eastern Regional Counsel (FAA) 

1 Aviation Plaza 

Jamaica, NY 11434 

Phone: (718)553-3258 

Telefax: (718)995-5699 

From: j.zaremba@empireairways.com 

To: Zachary Berman/AEA/FAA@FAA 

Cc: Greg Winton <greg@aviationlawexperts.com> 

Dale: 05/18/2010 08:55 PM 

Subject: New counsel 

To 

Office of the Eastern Regional Counsel (FAA) 

1 Aviation Plaza 

Jamaica, NY 11434 

Dear Mr Berman, 

Please be advised that as of 5/1/2010 Mr. Greg Winton has been 

retained by Empire as general counsel.He will be representing Empire 

in any existing and in all future matters concerning the FAA 

thank you for your consideration 

John Zaremba 

9/20/2010 
EXHIBIT 2 
Greg Winton 

From: 

Sent: 

To: 

Cc: 

Subject: 

j.zaremba@empireairways.com 

Monday, May 24, 2010 5:46 PM 

zachary.berman@faa.gov 

Greg Winton 

New Counsel 

change of 

lounsel.pdf (10 KB; 

Dear Mr Berman, 

as per your request attached please fine request on our stationary 

thank you 

J. Zaremba 
^^A j4&u»a^A 

May 24,2010 

Office of the Eastern Regional Counsel (FAA) 

1 Aviation Plaza 

Jamaica, NY 11434 

Dear Mr Bennan, 

Please be advised that as of 5/1/2010 Mr. Greg Winton has been 

retained by Empire as general counsel. He will be representing Empire 

in any existing and in all future matters concerning the FAA 

thank you for your consideration 

John Zaremba 

l^tau 109. •7f4uif«^S. 1^(imUiefiii^mt 

7>i->e 631- 777-2514 ?*r 63l'694-OI7e 
EXHIBIT 3 
Page 1 of 1 

Greg Winton 

From: David.Benkin@dot.gov 

Sent: Monday, July 26, 2010 9:58 AM 

To: greg@aviationlawexperts.com 

Subject: RE: In the Matter of Empire Airways DMS NO. FAA-2010-0191 

Dear Mr. Winton; 

You need to read the orders and notices I issue in your cases. 

From: Greg Winton [mailto:greg@aviationlawexperts.com] 

Sent: Friday, July 23, 2010 5:59 PM 

To: Benkin, David (OST) 

Cc: zachary.berman@faa.gov 

Subject: In the Matter of Empire Airways DMS NO. FAA-2010-0191 

Dear Honorable Judge Benkin: 

As you may recall, this office represents Respondent, Empire Ain^/ays, concerning the abovereferenced matter. On July 6, 2010, Respondent filed the attached Unopposed Motion for 

Decision. The motion is now ripe for disposition. 

If you have any questions, please do not hesitate to contact me. Thank you for your attention 

to this matter. 

Respectfully submitted. 

Gregory S. Winton, Esq. 

The Aviation Law Firm 

330 Aviation Way 

2nd Floor 

Frederick, MD 21701 

mailto:Greg@AviationLawExperts.com 

Toll free: 1-877-4-AIR LAW 

Local: (301) 294-8550 

Cell: (301) 529-5660 

Fax:(301)294-2525 

9/20/2010 
EXHIBIT 4 
07/2G/2010 09:31 FAX 2024835142 

p^^ 11001/003 

SERVED JUNE 23,2010 

U.S. DEPARTNfENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON. D.C. ,^^ ,^^ ^,,,.. ,.,-. 

IN THE MA'ITER OF 

EMPIRE AIRWAYS, 

Respondent 

FAA DOCKET NO. CP10EA0002 

(Civil Penalty Proceeding) 

DMS NO. FAA-2010-0191 

ADMINISTRATIVE LAW JUDGE'S ORDER DISMISSING 

PROCEEDING AND CANCELLING HEARING 

Counsel for the Complainant has filed a motion to withdraw the 

complaint "without prejudice." He says that the agency has been informed 

that the party named as Respondent in the complaint did not operate and 

maintain the aircraft in question. He also says that the purpose of the 

withdrawal of the complaint is to allow the Federal Aviation Administration 

to initiate the case anew against another party. 

I cannot and do not promise that the Complainant's case against a 

third party (a case I do not have before me) will not be prejudiced by the fact 

that the Complainant filed this case against Empire Airways. The case 

against the third party does not exist and, in any event, is not assigned to me, 

If, for example, the statute of limitations on prosecution of the third party 

expired while this case was before me, dismissal of this case may be said to 

"prejudice" the interests of the FAA. There is nothing I can do about that, 

and counsel for the FAA will just have to take his chances. 

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. I 

now do so. 

•- '*''! i ,/' ^ '•'".• . '•' ^' 
07/2G/2010 09:31 FAX 2024935142 FAA ©002/003 

The hearing scheduled to begin on August 12, 2010 is cancelled, 

IT IS SO ORDERED. 

Isaac D. Benkin 

Administrative Law Judge 
^ . , B1003/003 

07/26/2010 03:31 FAX 2024935142 FAA 

FAA Docket No. CP10EA0002 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W, 

Washington. DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000' 

ONE COPY 

Charles J. Casolaro, Respondent's Counsel 

Casolaro Sussman, LLP 

1050 Franklin Avenue, Suite 402 

Garden City, MY 11530 

TEL: 516-248-1399 

FAX: 516-248-2257 

Zachary M. Bennan, Complainani 's Counsel 

Office of the Regional Counsel 

Federal Aviation Administration 

1 Aviation Plaxa 

Jamaica, NY 11434 

TEL: 718-553-3258 

FAX: 718-995-5699 

The Honorable Isaac D. Benkin, AdminLstralive Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room E12-320 

Washington, DC 20590 

TEL: Attorney 202-366-0437 

Legal Assistant 202-366-2132 

FAX: 202-366-7536 

' Service was by US. Mail, b'or service in person or by expedited courier, use the following address; 

Federal Aviation Administrarion, 600 Independence Avenue, S-W., Wilbur Wright Building—Suite 

2WI000, Waslurtgton, DC 20391; Attention: Hearing Docket Clerfc, AGCM30. 
2023667536 Line 10STE12-128 10:06:05a.m. 07-26-2010 1/4 

SERVED JULY 1,2010 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

EMPIRE AIRWAYS, 

Respondent 

FAA DOCBCET NO. CPI0EA0002 

(Civil Penalty Proceeding) 

DMS NO. FAA-2010-0191 

ADMINISTRATIVE LAW JUDGE'S ORDER ON 

NOTICE OF WITHDRAWAL OF COMPLAINT 

Counsel for the FAA has sent me a second notice that it is 

withdrawing its complaint. In an order served on June 23,2010,1 granted 

his first motion to withdraw the complaint and, pursuant to § 13.215 of the 

Rules ofPractice, I dismissed this proceeding. Once is enough. I cannot 

now act on the latest notice because there is no longer a pending proceeding 

in this docket - at least not one that is assigned to me. 

So I am herewith dismissing the notice of withdrawal of the complaint 

without action. 

n IS SO ORDERED. 

' Isaa(^D. Benkin 

Administrative Law Judge 
2023667536 Line 10STE12-128 10:06:27 a.m. 07-26-2010 2/4 

( : 

SERVED JULY 7,2010 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

EMPIRE AIRWAYS, 

Respondent 

FAA DOCKET NO. CP10EA0002 

(Civil Penalty Proceeding) 

DMS NO. FAA-2010-0191 

ADMINISTRATIVE LAW JUDGE'S ORDER 

DISMISSING MOTION 

I have received from counsel for the erstwhile Respondent a motion 

for decision, entitled "Unopposed Motion for Decision," in which he 

proclaims that because the Federal Aviation Administration did not file a 

formal opposition to his prior motion for decision, his client is entitled to a 

judgment on the merits now. 

There is a good reason why the FAA did not oppose the former 

Respondent's motion for decision. Before that motion was filed, counsel for 

the FAA withdrew the complaint, A^^ereupon, acting pursuant to §13.215, 

the administrative law judge dismissed the proceeding with prejudice. 

Hence, a motion for decision will not lie, and need not be the subject 

of a response in opposition, not necessarily because there is merit in the 

motion for decision but because there is no case. 
2023667536 Line10STE12-128 10:06:52 a.m. 07-26-2010 3/4 

Because there is no case and, in any event, no case is pending before 

me, I now dismiss the second motion of Respondent's counsel without 

action. 

/ Isaac D. Benkin 

Administrative Law Judge 
2023667536 Line 10STE12-128 10:07:11a.m. 07-26-2010 4/4 

r C 

FAA Docket No. CP10EA0002 

(Civil Penalty Action) 

SERVICE LIST 

• > 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000' 

ONE COPY 

ChaxkiS J. CBSOISTO, Respondent's Counsel 

Casolaro Sussman, LLP1050 Franklin Avenue, Suite 402 

Garden City, NY 11530 

TEL: 516-248-1399 ' 

FAX: 516-248-2257 

Zachary M. Berman, Complainant's Counsel 

Office of the Regional Counsel 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

TEL: 718-553-3258 

FAX: 718-995-5699 

The Honorable Isaac D. Benkin, Administrative Law Judge 

OfiSce of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E, 

East Building Ground Floor, Room E12-320 

Washington, DC 20590 

TEL: Attorney 202-366-0437 

Legal Assistant 202-366-2132 

FAX: 202-366-7536 

' Service was by U.S. Mail. For service in person or by expedited courier, use the following address: 

Federal Aviation Administration, 600 Independence Avenue, S. W., Wilbur Wright Building—Suite 

2W1000, Washington, DC 20591; Attention; Hearing Docket Clerk, AGC-430. 
EXHIBIT 5 
U. S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

EMPIRE AIRWAYS 

Respondent 

FAA DOCKET NO. CP10EA0002 

(Civil Penalty Proceeding) 

DMS NO. FAA-2010-0191 

HONORABLE ISAAC D. BENKIN 

ADMINISTRATIVE LAW JUDGE 

SUPPLEMENTAL NET WORTH INFORMATION 

PURSUANT TO 14 C.F.R. § 14.11 

COMES NOW, Applicant, Empire Airways, by and through John Zaremba, under 

penalty of perjury, pursuant to 14 C.F.R. §14.11, and hereby supplements the Application 

for an award of attorney fees and other expenses pursuant to the Equal Access to Justice 

Act (EAJA). At all times relevant herein, I was and still am the President of Empire 

Airways. In support of this supplemental net worth statement, I state the following: 

I. The net worth of the Applicant and any affiliates when the proceeding was 

initiated: 

On February 16, 2010, the date on which the Complaint was filed in this matter. 

Applicant was a corporation (with no affiliates) with a net worth of not more than $7 

million and not more than 500 employees. Specifically, Applicant's net worth £is of 

February 16, 2010, was (-$900,000). 
II. Full disclosure of the Applicant's assets and liabilities: 

As of February 16,2010, Applicant's assets and liabilities were as follows: 

ASSETS: $1,300,000.00 

LIABILITIES: $2,100,000.00 

TOTAL EQUITY: $ (-90C.;)00.00) 

III. Between February 16,2009, and February 16,2010, no transfer of 

assets or obligations incurred by the Applicant reduced the net wortili of the 

Applicant below the applicable net worth ceiling. 

Dated: July/^b X , 2010 

' Jopn Zaremba 

resident 

Empire Airways