A recent NTSB decision illustrates, once again, how difficult it can be for an airman who successfully defends against the FAA to obtain an award of attorney fees under the Equal Access to Justice Act (“EAJA”). In Administrator v. Kamm the FAA alleged the airman violated FARs 91.155(a) and 91.13(a) when he allegedly operated a passenger-carrying flight under visual flight rules (“VFR”) through clouds in Alaska. After a hearing, the administrative law judge (“ALJ”) concluded that video and photographic evidence, as well as the testimony presented by the FAA, failed to prove it’s case because none of the evidence showed the aircraft flying through clouds. Not only did all four of the tourist passengers testify that the aircraft did not fly through clouds, the ALJ also found the testimony of two FAA inspectors who were passengers on the flight to be unreliable.
The ALJ noted inconsistencies between the inspectors’ written statements, drafted approximately two weeks following the flight at issue, and their testimony at the hearing. He also found that the inspectors’ stories were not corroborative because one inspector stated the aircraft’s left wing disappeared into clouds for a matter of moments on two specific instances but the other inspector stated that the aircraft flew through small clouds approximately eight times during the flight.
As a successful party, the airman then applied for an award of attorney fees under EAJA. However, the ALJ denied the fee request finding the FAA was substantially justified in pursuing the case. The ALJ rejected the airman’s argument that based upon the evidence and testimony, a fee award was appropriate because the FAA shouldn’t have pursued the case at all. The ALJ stated that a hearing was necessary to assess the reliability and credibility of the inspectors’ and other witnesses’ testimony. The airman then appealed the denial to the NTSB.
On appeal, the airman argued the ALJ erred in finding the FAA’s pursuit of the underlying case was reasonable and that the FAA should have known the inspectors’ recollections of the flight were inconsistent and, as a result, it should have abandoned the case before the hearing. With respect to the first argument, the Board observed that the FAA is substantially justified in pursuing a complaint if key factual issues hinge on witness credibility. Since the ALJ’s decision hinged on his credibility findings at the hearing, the Board found it was reasonable for the FAA to pursue the case against airman.
In analyzing the airman’s second argument, the Board initially observed that the FAA will be liable for an award of attorney fees under EAJA if the FAA does not abandon the investigation of a case when it knows or should know the case is neither reasonable in fact nor law. Next, the Board noted the FAA’s investigation of the case included reviewing the physical evidence and interviewing the witnesses, including the four tourist passengers and only then did it decide to pursue the case against the airman. As a result, the Board found the FAA did not disregard or fail to give meaningful consideration to the airman’s defense. It then concluded by stating “[g]iven the evidence before the Administrator, consisting of photographs and the first-hand observations of experienced FAA inspectors, we find the Administrator’s pursuit of the case was reasonable.”
This case highlights the high hurdle applicant’s must vault in order to show that the FAA was not substantially justified in pursuing it’s case. But if the FAA’s own witnesses can’t get their stories straight, I’m not sure how it can be justified in pursuing your case. Unfortunately, when the ALJ couches his decision in terms of credibility, as is the case more and more often, it can be very difficult to win an EAJA attorney fee award.