The FAA has affirmed a DOT administrative law judge’s denial of a request for attorney’s fees and expenses under the Equal Access to Justice Act in a civil penalty action alleging violations of hazardous materials statutes. In In the matter of Dominion Concepts, Inc., the FAA was seeking to assess a $27,000.00 civil penalty against Dominion for knowingly offering an undeclared shipment of hazardous materials for air transportation, failing to class, describe, package, mark, label, and certify the materials properly, failing to provide emergency response information, and failing to instruct Dominion’s officers, agents, and employees as to the applicable regulations.
However, after the alleged violations, Dominion had apparently filed for bankruptcy and was no longer in existence. After discussions between Dominion, the FAA and the ALJ, the parties agreed to have the ALJ issue a consent order assessing a $1,000 civil penalty against Dominion and dismissing the FAA’s complaint with prejudice. Following entry of the consent order, Dominion filed an application for $10,000.00 in attorney’s fees and expenses under EAJA. The ALJ dismissed the application on the ground that his consent order was not a “decision of the adjudicative officer” because it was not issued after consideration of the facts and the law. Thus, EAJA did not provide a remedy in that situation. Dominion then appealed.
On appeal, the FAA administrator, who reviews civil penalty decisions, rejected the application holding that the EAJA does not apply to hazardous materials cases. Rather, it only applies to adversarial adjudications. The administrator also found that Dominion was unable to show that the FAA’s demand was unreasonable under all of the facts and circumstances of the case.
Currently, Dominion has appealed the case to the United States Court of Appeals.
