On February 6, 2007, the FAA filed a complaint against Green Air alleging that during a chartered flight from New Jersey to the Bahamas, its plane carried ten, rather than the approved nine passengers. The tenth passenger was the pilot's adult daughter. The FAA alleged that she was either an unapproved tenth passenger or an untrained flight attendant, and sought $33,000 for violation of three regulations. Green Air responded, through its attorneys at The Aviation Law Firm, that the daughter was a non-required crew member, and as a Green Air employee, she was permitted by regulation to occupy the cockpit jump seat during the flight.
Two weeks before the scheduled hearing, the FAA voluntarily withdrew its complaint. Pursuant to procedural regulations, the Administrative Law Judge (ALJ) dismissed the case with prejudice. Following dismissal, Green Air filed an application for attorney's fees and other expenses incurred to defend the complaint. The ALJ found that Green Air was the prevailing party, but denied the request for fees finding that the agency was substantially justified in bringing the complaint. Green Air appealed the denial of fees to the FAA Administrator.
Upon appeal, the FAA Administrator found that Green Air was not the prevailing party, because the agency voluntarily withdrew its complaint. As a result, the Administrator sustained the denial of attorney's fees.
Green Air petitioned the U.S. Court of Appeals for review of the FAA Administrator's decision, arguing that it was the prevailing party as the term has been interpreted by the U.S. Supreme Court in Buckhannon, 532 U.S. 598 (2001). The appeal turned on whether the ALJ's dismissal with prejudice satisfied the Supreme Court's requirements for prevailing party status.
The court found that as a result of the dismissal, "the FAA could not re-file a complaint based on the same set of facts because the dismissal with prejudice has res judicata effect." Accordingly, the court stated that "Green Aviation obtained judicial relief by the dismissal order; nothing in Buckhannon or this court's precedent requires more. This conclusion comports with the EAJA, which is to prevent defendants from 'be[ing] deterred from seeking review of or defending against unreasonable governmental action because of the expense involved.'"
Gregory S. Winton and Jared M. Allen of The Aviation Law Firm represented Green Air. Winton, a former FAA and Department of Justice trial attorney, has been practicing aviation law exclusively for more than 21 years. During the past six years, Winton and The Aviation Law Firm have successfully recovered more than $250,000 from the FAA, on behalf of clients, under the Equal Access to Justice Act.Source: Aviation Law Experts, LLC