In Administrator v. Ted Ray Moore, the FAA charged the airman with violations of FAR’s91.123(a)(deviation from ATC clearance) and 121.525(f)(careless and reckless). After a hearing, the ALJ dismissed the 91.123(a) charge but affirmed the 121.525(f) charge. The airman appealed to the NTSB Board who upheld the ALJ’s dismissal of the 91.123(a) charge and reversed the ALJ’s finding on the 121.525(f) charge, dismissing that charge as well.
The airman then filed a petition seeking recovery of his attorney’s fees and expenses under 5 U.S.C 504, the Equal Access to Justice Act (“EAJA”). The ALJ denied the airman’s petition finding that the Administrator was substantially justified in pursuing the case to hearing because key factual issues were present which hinged on credibility. In affirming the ALJ’s order, the Board determined that the Administrator’s position was substantially justified because it was reasonable both in law and fact. That is, the Board found that the facts alleged had a reasonable basis in truth, the legal theory propounded was reasonable, and the facts alleged reasonably supported the legal theory.
In this case, the airman was fortunate that the ALJ found the airman and his fellow crewmember more credible than the FAA’s witnesses. This credibility determination resulted in dismissal of the charges. Had the ALJ found the FAA’s witnesses more credible, the facts alleged would have supported the FAA’s charges. As a result, because the case necessarily depended upon credibility determinations that, if made in favor of the FAA would have supported its charges, the FAA’s decision to pursue the case to hearing was substantially justified. Unfortunately for the airman, this resulted in the denial of his petition for fees under EAJA.
