In a recent decision, the NSTB has upheld an award of attorney’s fees in excess of $21,000 pursuant to the Equal Access to Justice Act (“EAJA”). In Application of Michael Anthony Tarascio, the airman applied for an award of attorney’s fees and costs he incurred in obtaining dismissal of an underlying enforcement action initiated against him by the FAA (See my November 12, 2004 post regarding the underlying decision). The administrative law judge granted the application and awarded $21,978.47. The FAA then appealed the decision to the NTSB arguing that the FAA was substantially justified in pursuing the underlying action and that the fees were excessive.
The NTSB denied the FAA’s appeal. In analyzing the issue of whether the fees were properly awarded, the Board analyzed the legal basis for making an EAJA award. It first noted that an award of attorney’s fees and other specified costs pursuant to EAJA is appropriate when the FAA is shown not to have been substantially justified in pursuing its complaint. That is, the FAA’s position was not reasonable in fact and law. The Board went on to state that “a determination of reasonableness involves an initial assessment of whether sufficient, reliable evidence exists to pursue the matter” and “that EAJA’s substantial justification test is less demanding than the administrator’s burden of proof when arguing the merits of the underlying complaint. As a result, the Board engages in an “independent evaluation of the circumstances that led to the Administrator’s original complaint” in order to determine whether the Administrator was substantially justified in pursuing the case.
In reviewing the FAA’s arguments, the Board was less than complimentary, stating that “the Administrator presents a jumbled series of arguments, most of which are nearly identical to her arguments on the merits of the case.” It then summarily dismissed the FAA’s arguments as either unsupported or without merit. The Board also rejected the FAA’s argument regarding the amount of the award holding that “[a]pplicant’s attorney’s time and expenses in defending against the Administrator’s original complaint are well documented” and noting that “the Administrator does not identify any specific charges on any of applicant’s invoices as erroneous or even questionable”. The Board also granted the airman’s supplemental request for fees and expenses incurred in the EAJA action.
This case is a good win for the airman. Not only was he vindicated in the underlying action, but he was also able to recoup the money he should not have had to spend defending himself against the FAA. It is also proof that the FAA does not always win.
