A Kinder, Gentler FAA? Continued from page 23 Q: All right. Now, you also testified earlier that, to determine the size of the separation, or delamina- tion, as you described it, of the right wing tip trail- ing edge, you used your pinky nail, right? A: Yes, sir. Q: Now, you know that is not an authorized way to measure for aircraft maintenance? A: That’s correct, sir. Inspector Dodge’s Expert Testimony Lastly, the Chief Law Judge did not credit the FAA expert’s opinions for the following reasons: I found Inspector Dodge to be very qualified and to be very forceful in his opinions that there was no toler- ance for fuel leaks by the manufacturer. However, he provided no basis for that opinion from the manu- facturer of the aircraft or the propeller in this case. I find his dismissal of the letter of [the manufacturer of the aircraft] relating to such tolerances as it re- lates to fuel problems as worthless to be troubling. I did not find much depth to his testimony and I do not find it persuasive; therefore, I cannot give it more than minimal weight in this case, in this specific case based on the evidence before me. The FAA did not appeal the Chief Judge’s Decision. Based upon the findings above, the record estab- lished that the FAA lacked any facts to proceed with prosecution of an enforcement action. Clearly, this was a case that should never have been initiated. Therefore, I question whether the FAA’s new Compliance Philosophy will protect certifi- cate holders in the future against the prosecution of cases that are not substantially justified. Only time will tell. The Equal Access to Justice Act Unfortunately, the money expended by the FAA, as well as the airman to successfully defend the enforcement action, exceeded six figures. The airman has applied for reim- bursement of attorney’s fees and expenses under the Equal Access to Justice Act (EAJA). The purpose of the EAJA is to prevent defendants from being deterred from “defend- ing against unreasonable governmental action because of the expense involved.” Green Aviation Mgmt. Co., LLC v. FAA, 676 F.3d 200, 205 (D.C. Cir. 2012) (citing H.R. Conf. Rep. No. 96-1434, at 21 (1980), reprinted in 1980 U.S.C.C.A.N. 5003, 5010 (1980)). The EAJA Legislative history is clear that Congress intended it to be a remedy for individuals and small business owners who face tremen- dous costs of litigation against the federal government. Questions and inquiries may be directed to: Gregory S. Winton, Esq. NATA Aviation Legal Services Plan™ 301-294-8550 1-877-4-AIR-LAW www.avlawservices.com [email protected] Disclaimer - Not Legal Advice – No Attorney-Client Relationship Formed by This Article or By Any Comments in This Article. The information in this article is provided for general informational purposes only and is not in- tended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circum- stances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing in this article is intended to substitute for the advice of an at- torney. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction. Aviation Business Journal | 1st Quarter 2016 25
