United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1535

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Lee H. Allen, *

*

Petitioner, *

* Appeal from an Order of

v. * the National Transportation

* Safety Board.

National Transportation Safety Board; * [PUBLISHED]

Federal Aviation Administration, *

*

Respondents. *

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Submitted: September 24, 1998

Filed: November 5, 1998 

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Before WOLLMAN, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

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PER CURIAM.

Lee H. Allen petitions for review of the National Transportation Safety Board’s

(Board) award of attorney fees. We affirm.

In a consolidated action, the Federal Aviation Administration sought revocation

of Allen’s airline transport pilot certificate and the air carrier operating certificate of

Excaliber Aviation, Inc. (Excaliber). Allen and Excaliber were represented by the same

counsel. Following a hearing, the Board reduced the revocation of Allen’s pilot
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certificate to a 180-day suspension and affirmed the revocation of Excaliber’s

certificate. Allen applied for attorney fees and expenses as a prevailing party pursuant

to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504(a)(1), (4) (1997). The

Board awarded Allen approximately fifteen percent of the amount claimed.

We will affirm an agency decision if it “is not ‘arbitrary, capricious, an abuse of

discretion, or otherwise not supported by law.’” See Reder v. Administrator of the

Fed. Aviation Admin., 116 F.3d 1261, 1263 (8th Cir. 1997) (quoting Trans-Allied

Audit Co. v. Interstate Commerce Comm’n, 33 F.3d 1024, 1030 (8th Cir. 1994)). We

can modify the Board’s decision only if it is not supported by substantial evidence. See

Smith v. National Transp. Safety Bd., 992 F.2d 849, 852 (8th Cir. 1993). Having

reviewed the record, we agree that the agency’s award is supported by substantial

evidence. The Board determined that Allen was partially successful in his defense of

the claims. A party who achieves limited success is entitled to recover a reasonable fee

commensurate with the results obtained. See Hensley v. Eckerhart, 461 U.S. 424, 440

(1983); Jenkins v. Missouri, 127 F.3d 709, 716 (8th Cir. 1997). In determining Allen’s

award, the Board requested a summary of attorney fees. Despite this request, Allen

failed to provide a breakdown of fees incurred in defending the claims brought against

him. In the absence of such evidence, the award of attorney fees cannot be said to be

unreasonable in light of the results obtained. See Hensley, 461 U.S. 437 n.12 (quoting

Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir. 1978)).

In Hensley, 461 U.S. at 435 n.11, the Court disapproved of applying a strict

mathematical formula when awarding attorney fees. Allen prevailed on approximately

fifteen percent of his claims, and the Board awarded him fifteen percent of his attorney

fees. Nothing in the record, however, leads us to believe that the Board based its

award solely upon a strict mathematical formula. Cf. Gumbhir v. Curators of the

University of Minnesota, Nos. 97-3066+, slip op. at 8-9 (8th Cir. Oct. 7, 1998)

(reasonable fee could not exceed the percentage of the damages recovered).
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Alternatively, Allen claims that he is entitled to attorney fees because the

demand by the agency was substantially in excess of the decision of the adjudicative

officer and was unreasonable when compared with the officer’s decision. 5 U.S.C. §

504(a)(4). The Board made a specific finding that the demand that Allen’s certificate

be revoked was not excessive and that the agency was substantially justified in seeking

such revocation. Because substantial evidence in the record as a whole supports this

finding, we will not disturb the Board’s decision.

The Board’s order is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.