The NTSB recently granted an FAA appeal in Application of Raymond L. Keith and reversed an administrative law judge’s award of attorney’s fees under the Equal Access to Justice Act (“EAJA”). In the underlying certificate action upon which the EAJA application was based, the FAA had alleged a number of FAR violations based upon the airman’s unauthorized flight through the Washington ADIZ. After a hearing, Judge Fowler dismissed the FAA’s complaint, concluding that the airman was not responsible for his aircraft’s unauthorized entry into the ADIZ because the airman had reasonably relied upon his co-pilot to obtain clearance from ATC to enter the ADIZ. Based upon this conclusion, Judge Fowler also granted the airman’s EAJA attorney’s fees request holding that the FAA was not substantially justified in pursuing the charges against the airman. The FAA appealed, arguing that it was in fact substantially justified in pursuing the action.
In response to the FAA’s appeal, the Board initially discussed the standard of review for awarding attorney’s fees under EAJA noting that “we will not award certain attorney’s fees and other specified costs if the government is shown to have been substantially justified in pursuing its complaint.” In order for its claims to be substantially justified, the FAA must have had sufficient reliable evidence such that its pursuit of its claims was reasonable in both fact and law. The Board also observed that “EAJA’s substantial justification test is less demanding than the Administrator’s burden of proof when arguing the merits of the underlying complaint” and that “we are compelled to engage in an independent evaluation of the circumstances that led to the Administrator’s original complaint, and determine whether the Administrator was substantially justified in pursuing the case based on those circumstances.”
The Board then analyzed the airman’s reasonable reliance defense, stating that “[w]e cannot find that its application to the undisputed facts of this case was so clear that the Administrator had no substantial justification for pursuing the case.” Under the reasonable reliance defense, the airman’s violation could only be excused if the airman proved that he had no independent obligation or ability to ascertain whether the flight was cleared to enter the ADIZ, and no reason to question his first officer’s performance. After discussing the evidence presented by the FAA at the hearing, the Board concluded that “the Administrator was substantially justified in charging applicant with violating applicable Federal Aviation Regulations when applicant entered the ADIZ in violation of the NOTAM. The Administrator’s allegations were reasonable in fact and in law, because the Administrator had sufficient, reliable evidence to pursue the charges against applicant. Applicant admitted to entering the ADIZ without permission from ATC, and only much later presented the affirmative defense of reasonable reliance.”
This case provides a nice discussion both of the standard of review for EAJA attorney’s fees applications and of the requirements for successfully asserting the reasonable reliance defense. Although the airman did not recover his attorney fees, at least he was successful in avoiding a suspension of his airman certificate.
