After an NTSB administrative law judge affirmed an FAA order revoking an airman’s certificate, the airman applied for an award of attorney’s fees under the Equal Access to Justice Act (“EAJA”). In Application of Shaffer, the airman argued that he was entitled to EAJA fees because the FAA withdrew portions of the complaint during the hearing and, thus, as to the withdrawn factual allegations and associated regulatory violations, he prevailed. The ALJ rejected the airman’s argument and denied the application. The airman then appealed the ALJ’s denial to the full NTSB, although he did not file his appeal on time.
On appeal, the airman repeated his argument that the FAA’s withdrawal of factual allegations and associated claims of regulatory violations entitled him to an award of EAJA fees. Although the Board rejected the airman’s appeal based upon his untimely filing, it also went on to address his argument. The Board observed that “the law judge’s ruling to affirm revocation (albeit on the basis of fewer factual and regulatory charges) accomplished the full purpose of the Administrator’s litigated order.” It also noted that EAJA fees have never been awarded to an applicant who suffered the ultimate sanction of revocation.
The Board then cited to a number of cases that discuss the issue of when a party is considered to be a “prevailing party.” Those cases indicate that a prevailing party is one who achieves a “judicially sanctioned change in the legal relationship of the parties”), who obtains “formal judicial relief, and not merely ‘success,'” or who has “been awarded some relief by a court, either in a judgment on the merits or in a court-ordered consent decree.” Consistent with those cases, the Board concluded that the airman had not shown that he was a prevailing party with respect to the withdrawn charges.
This is the first time I have seen an airman whose certificates were revoked apply for EAJA fees. Some may want to give the airman an “A” for effort. After all, what did he have to lose? However, it seems to me like a waste of the airman’s time and energy, as well as judicial resources, in light of the Board’s completely foreseeable decision. Well, at least now we have clear precedent on the issue, even though we probably did before. At a minimum, it makes for interesting reading, as always.