An ALJ’s rejection of a request for further proceedings in connection with a application for attorney’s fees under the Equal Access to Justice Act (“EAJA”) was recently affirmed in Application of Downey and DeSantis. After successfully obtaining dismissal of the FAA’s charges against them in the underlying enforcement action, the airmen applied for an EAJA award of attorney’s fees arguing that the FAA was not substantially justified in pursuing its claims against them. The airmen also requested additional proceedings in connection with their claim that the FAA was not substantially justified. However, the ALJ denied both requests and held that the evidence presented at the underlying enforcement hearing was sufficient to establish that the FAA was substantially justified in pursuing the action against the airmen.
On appeal to the full Board, the airmen argued that the ALJ erred in refusing to order additional proceedings on their EAJA fee request. However, the Board deferred to the latitude granted to the ALJ under 49 U.S.C. 826.36 and rejected this argument. The Board observed that under Section 826.36(a), the ALJ’s determination of whether an EAJA award is appropriate is usually based on the written record of the case. Further, Section 826.36(b) requires that a request for additional proceedings specifically identify the information sought or the disputed issues and explain why the additional proceedings are necessary to resolve the issues.
The Board found that the airmen had not demonstrated that further proceedings were necessary for a full and fair resolution of the EAJA attorney’s fees issue. It noted that the airmen’s brief did not specify why an additional hearing or further discovery was necessary for full and fair resolution of the issue, and it did not state how such further proceedings would assist the ALJ or the Board in resolving the issue. As a result, the Board concluded that the ALJ’s refusal to order additional proceedings was not error because the airmen did not meet the standard required by Section 826.36.
This case makes sense. If an airman has fully developed the airman’s case at the enforcement hearing, which is quite likely if the airman was successful, then the hearing record is probably sufficient for an EAJA analysis. If for some reason circumstances that were not developed at the hearing are relevant for the EAJA analysis, Section 826.36 allows for further proceedings provided that a specific explanation is given as to what information is to be obtained in the additional proceedings and how that information will assist in the EAJA analysis. However, keep in mind that the ALJ has the discretion to grant or reject further proceedings on the issue and the Board will typically defer to that discretion.
