SERVED DECEMBER 9, 2010. '^"- '• OP-JlAriONS 

9 P U: 50 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

APPLICATION OF 

EMPIRE AIRWAYS 

For fees and expenses under the 

Equal Access to Justice Act 

EAJA-EA-0001 

FAA DOCKET NO. CP10EA0008 

FDMS NO. FAA-2010-0787 

DECISION OF CHIEF ADMINISTRATIVE LAW JUDGE 

This proceeding arises from an application ("Application") filed by Empire Airways 

("Empire") on August 6, 2010, seeking attorney's fees and expenses imder the Equal Access to 

Justice Act ("EAJA"), 5 U.S.C. § 504, and the relevant implementing regulations, 14 C.F.R. Part 

14. The proceeding underlying the Application was a civil penalty action brought by the 

Regional Counsel for the Federal Aviation Administration, Eastern Region ("FAA") bearing 

FAA Docket Number CP1OEA0002 and DMS Number FAA-2010-0191. For the reasons set 

forth below, we grant Empire's Application in the amount of $2,390. 
STATEMENT OF PROCEEDING 

The Underlying Proceeding 

In the underlying proceeding, the FAA alleged that Empire maintained and operated ^ 

aircraft in violation of various Federal Aviation Regulations.' On March 24,2010, Charles 

Casolaro, Esq. ("Casolaro") filed an Answer on behalf of Empire, which asserted the defense 

that Empire neither owned nor operated the aircraft in question.^ Then, on June 1,2010, Gregory 

Winton, Esq. ("Winton") filed a Notice of Appearance and Substitution of Counsel on behalf of 

Empire.^ However, due to an oversight, the service list was not updated to reflect the 

substitution of Winton for Casolaro as Empire's counsel.'* 

On June 21,2010, the FAA filed a Motion to Withdraw Complaint Without Prejudice.^ 

In its motion, the FAA admitted that it had filed its Complaint against the wrong entity.^ 

Therefore, Claimant sought to volimtarily withdraw its Complaint "without prejudice" in order to 

re-file it against the correct entity.^ On June 23,2010, the administrative law judge issued an 

Order Dismissing Proceeding and Cancelling Hearing ("D»ismissal Order"). In the Dismissal 

Order, the judge dismissed the FAA's case against Empire with prejudice* as set forth in the 

applicable procedural rules.' The FAA then Sent the judge a second notice of its decision to 

' Complaint, Case No. CP10EA0002, Docket No. FAA-2010-0191 (Febraary 6,2010). 

^ Answer, Case No. CP10EA0002, Docket No. FAA-2010-0191 ^Ntofch 24,2010). 

' Notice of Appearance and Substitution of Counsel, Case 1^6" X^tOfiA0002, Docket No. FAA-2010-0191 (June 1, 

2010). 

* See, e.g., Administrative Law Judge's Order Dismissing PilOcSbtiding and Cancelling Hearing, Case No. 

CP10EA0002, Docket No. FAA-2010-0191, at 3 (June 23,2010) [hereinafter, "Dismissal Order"] (indicating that 

the order was served on Casolaro, but not Winton). 

* Con^)lainant's Motion to Withdraw Complaint Without Prejudice, Case No. CP10EA0002, Docket No. FAA2010-0191 (June 21, 2010) [hereinafter, "Complainant's Motion to Withdraw"]. 

* /<i. at 1,13 (stating that Empire Flight Academy, not Empire Airways, had committed the alleged violations). 

^A/. at 1-2,14. 

* See Dismissal Order, supra note 4, at 1 (distinguishing between prejtidice in the FAA's present case against 

Empire Airways and possible prejudice in the FAA's future case agamst Empire Flight Academy). 

' 14 C.F.R. § 13.215 (2006) ("if an agency attorney withdraws the conq)laint... the administrative law judge shall 

dismiss the proceedings under this subpart with prejudice"). 
withdraw its Complaint.'° On July 1, 2010, the judge issued an Order on Notice of Withdrawal 

of Complaint ("Order on Notice"), noting that he had already dismissed the case with prejudice 

on June 23, 2010, and therefore could not act on the FAA's second notice." However, because 

the service list had not been updated, Winton was not served with either of these orders. 

Empire alleges that Winton finally obtained copies of the orders on July 26,2010.^"* 

The EAJA Application 

On August 6,2010, Empire filed its Application seeking an award of attorney's fees and 

expenses under EAJA.'^ In the Application, Empire alleged that it had prevailed in the 

imderlying action,'^ the FAA was not substantially justified in filing its Complaint,'^ Empire had 

incurred $4,980 in legal fees and expenses,'^ and no special circumstances would make an EAJA 

award unjust.'^ However, Empire did not attach a net worth exhibit to the Application."^" 

On September 1,2010, the FAA served its response ("Response") to the Application. In 

its Response, the FAA argued that the Application should be dismissed because it was not timely 

filed,"^' Empire had failed to attach a net worth exhibit,^^ and Empire had not prevailed in the 

'" See Order on Notice of Withdrawal of Complaint, Docket No. FAA-2010-0191, at 1 (July 1, 2010) [hereinafter, 

"Order on Notice"]. 

'^ See, e.g., Dismissal Order, supra note 4, at 3 (indicating that Winton was not served with the Order). 

'^ See Agency's Response to Respondent's Nunc Pro Time Application for an Award of Attorney Fees and Other 

Expenses Pursuant to the Equal Access to Justice Act, Case No. CP10EA0008, Docket No. FAA-2010-0787, at 2, H 

7 (September 1,2010) [hereinafter, "Agency's Response to Application"] (acknowledging that Winton was not 

served with the Dismissal Order or Order on Notice). 

'* Nunc Pro Tunc Application for an Award of Attorney Fees and Other Expenses Pursuant to the Equal Access to 

Justice Act (EAJA), Case No. CP10EA0008, Docket No. FAA-2010-0787, at 1, n.l (August 6,2010) [hereinafter, 

"Application"]. 

" Id. at 2 (citing 5 U.S.C. § 504(a)(1)). 

^^Id. 2X5. 

''I d 

'^IdsXl. 

''I d at2. 

^ See id. at 7 (providing a brief statement relating to net worth, not a fiall exhibit as required by the regulations). 

^' Agency's Response to Application, supra note 13, at 3. 

^^Idatl. 
underlying action.^^ However, the FAA did not oont^id that its position in the underlying 

proceeding was substantially justified or that special'circumstances would make an award unjust. 

Therefore, these issues are not considered in this decision.^^ 

Finally, on September 20,2010, Empire setved ateply ("Reply") to the FAA's Response 

to the Application.^^ In its Reply, Empire contendedlliat its Application was timely filed and, 

even if it was late, the deadline should be extended "in the interest of judicial fairHesS." 

Empire continued to argue that it prevailed in theundeaiying proceeding.^^ Finally, Empire 

attached a net worth exhibit to its Reply. ^^ 

THE LEGAL FRAMEWORK 

Equal Access to Justice Act 

Empire seeks to recover attorney's fees and expenses under the Equal Access to Justice 

Act ("EAJA").^' Congress enacted an initial, temporary version of EAJA in 1980,^° and 

permanently enacted an amended version of EAJA in 1985.^' The legislative history of EAJA 

indicates that Congress's purpose in adopting EAJA was* to enable small businesses to challenge 

unreasonable action by the federal government. Proponents of EAJA were concerned that, due 

to the expense of litigation, small businesses might simply settle with the government ratho" than 

^^ Id at 5. 

^ See Green Aviation Management, Co., Docket No. FAA*20O7(K269B9, 2008 WL 441796, at •2 (January le.i^OOS) 

(Benkin, A.L. J.) (parties did not contest whether the '^revailingfpiarty" requirement was satisfied, and the iS^tf was 

not considered). -I 

^' Apphcant's Reply to the Agency's Answer to Equal Access to Justjc© Act Application andlbquest fef Furfli^ 

Proceedings, CaseNo. CP10EA0008, Docket No. FAA42Ql(Ml1'87 (Si^tember 20,2010) [h<««aifitrfter, "Aftylicant's 

Reply to Agency's Response"]. . • 

^Mat6 . • 

^'Mat 6-17. 

^'Mat Exhibit 5. 

^' AppUcation, supra note 14, at 2 (citing 5 U.S.C. § 504(a)(1)). 

^ Pub. L. No. 96-481, 94 Stat. 2321 (1980). 

" Pub. L. No. 99-80,99 Stat. 183 (1985). 

'^ Scarborough v. Principi, 541 U.S. 401,406 (2004) (citit|giB;«L Rep. No. 99-120(1) (1985)). See Susan M. Olson, 

How Much Access to Justice from State "Equal Access to JusticdActs^'?; 71 Ghi.-Kent L. Rev. 547, 557 (199$); 

Louise L. Hill, An Analysis and Explanation of the Equal Access to Justice Act, 19 Ariz. St. L.J. 229,230 (1987). 
defend their legal rights. To address these concerns, Congress created a right to "one-way" fee 

shifting (fi-om private parties to the goverrmient) if certain requirements are met.^'* This right to 

fee shifting is a significant exception to the American Rule, under which litigants normally are 

required to bear their own attorney's fees and costs.^^ Also, it constitutes a partial waiver of 

sovereign immunity, under which "the United States, as sovereign, is immune fi^om suit save as it 

consents to be sued."^^ 

EAJA is composed of two sections, one of which applies to civil law suits^^ and the other 

n o 

of which applies to administrative proceedings, Given the administrative context of the 

underlying action by the FAA against Empire, the Application in this case is subject to the 

requirements of 5 U.S.C § 504, the section of EAJA that applies to administrative proceedings. 

Also, the Application is subject to 14 C.F.R. §§ 14.01-14.30, the applicable regulations 

implementing EAJA. 

The Parties' Contentions 

The parties' arguments involve three requirements of EAJA and the implementing 

regulations. 

First, section 504(a)(2) provides that "a party seeking an award of fees and other 

expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to 

the agency an application which shows that the party is a prevailing party and is eligible to 

" H.R. Rep. No. 96-1418 (1980). See Susan Gluck Mezey and Susan M. Olson, Fee Shifting and Public Policy: The 

Equal Access to Justice Act, 11 Judicature 13,15 (1993). 

'" 5 U.S.C. § 504(a)(1). Seel&sachaiKos&n-Zvi, Just Fee Shifting, 37 Fla. St. U. L. Rev. 717, 731-33 (2010). 

'^ See generally Hill, supra note 32, at 231. 

^* U.S. V. Sherwood, 312 U.S. 584, 586 (1941)); see generally Hill, supra note 32, at 231. 

^^ 28 U.S.C. § 2412 (setting forth the requirements of EAJA in federal court proceedings). 

'* 5 U.S.C. § 504 (setting forth the requirements of EAJA in administrative agency proceedings). 
receive an award. "^^ The parties dispute whether:Empire filed its Application on time, and 

whether we have any discretion to extend the filing deadline.'*^ 

Second, section 504(b)(1)(A) provides that, to qualify as a party eUgible to recover uiider 

EAJA, a business entity applicant must have had a net worth "not exceed[ingi $7,000,000" and 

"not more than 500 employees at the time adversary adjudication was initiated."'*^ To implement 

this requirement, section 14.11(a) of the regulations requires tiiat "each applicant... must 

provide with its application a detailed exhibit showing the net worth of the applicant and any 

affiliates when the proceeding was initiated.''^^ The FAA contends that the Application should 

be dismissed due to Empire's failure to include a net worth exhibit.^^ However, Empire 

belatedly submitted a net worth exhibit along with its Reply to the FAA's Response to the 

AppHcation.'*'* 

Third, section 504(a)(1) provides that "an agency that conducts an adversary adjudication 

shall award, to a prevailing party other than the United States, fees and other expoises inc\jrred 

by that party in connection with that proceeding, unless the adjudicative officer of the agency 

finds that the position of the agency was substantially justified or that special circumstances 

make an award unjust."'*^ Thus, in order to recover attorney's fees and expenses under EAJA, a 

party must have been a "prevailing party" in the underlying action. The parties dispute whether 

Empire "prevailed" within the meaning of section 504.*^ 

^' § 504(a)(2); see also 14 C.F.R. § 14.20(a). 

*" Agency's Response to Application, supra note 13, at 3-4; Applicant's Reply to Agency's Response, supra note 

25, at 6. 

« § 504(b)(1)(B). 

*M4C.F.R.§ 14.11(a). 

*' Agency's Response to Application, supra note 13, at 7. 

^ Apphcant's Reply to Agency's Response, supra note 25, at Exhibit 5. 

"' § 504(a)(1); see also 14 C.F.R. § 14.01. 

** Agency's Response to AppUcation, supra note 13, at 5; AppUofotls "Bieply to Agency's Response, supra note 25, 

at 6-17. 
Additionally, section 504(b)(1)(A) provides that tiie amount of any award granted under 

EAJA must be "reasonable.""*^ While the FAA has not argued that Empire seeks an 

unreasonably large award, the implementing regulations direct that the administrative law judge 

independently consider the reasonableness of the amount sought. 

For the following reasons, we grant Empire's Application. First, although Empire did not 

file its Application on time, we have decided to extend the filing deadline under equitable tolling 

principles. Second, Empire did not file a net worth exhibit with its Application, but Empire 

submitted a net worth exhibit with its Reply brief, and we accept that amendment to the 

Application, because it relates to the same conduct, transaction, or occurrence as the Application 

itself Third, we conclude that Empire was the "prevailing party" in the underlying litigation, 

and grant the Application. Finally, we conclude that the award sought by Empire exceeds the 

amoxmt permitted under the statute and regulations and reduce the award to $2,390. 

THE TIMELINESS OF THE APPLICATION 

The Application was not timely filed. Empire filed the Application on August 6, 2010, 

one day after the filing deadline. However, imder equitable tolling principles, the late filing of 

the Application should be excused. 

Calculating the Filing Deadline 

Section 504(a)(2) provides that "a party seeking an award of fees and other expenses 

shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency 

an application which shows that the party is a prevailing party and is eligible to receive an 

' ' § 504(b)(1)(A). 

^' 14 C.F.R. § 14.05(c) ("in determining the reasonableness of the fee sought for an attorney, agent, or expert 

witness, the AU or adjudicative officer shall consider" various factors). 

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award.""*^ The implementing regulations, in section 14.20(c), provide that a "final disposition" 

occurs on "the date on which an unappealed initial decision becomes administratively final."^° A 

written initial decision becomes "administratively final" if it is not appealed within ten days pf 

service.^' In this case, the Dismissal Order was served on June 23,2010. Because it was not 

appealed, it became "administratively final" ten days later. Therefore, the "final disposition" of 

the case occurred on July 6,2010.^^ As a result. Empire had thirty days from then, until August 

5,2010, to file an EAJA application. Empire filed its implication on August 6,2010. As a 

result, the Application was one day late. 

In its Reply, Empire argues that the filing deadline should be calculated based on the 

Order on Notice, not the Dismissal Order. ^^ The Order on Notice was issued on July 1,2010, a 

week after the Dismissal Order.^"^ Therefore, according to Empire, the "final disposition" of the 

proceeding occurred on July 12,2010, and the deadline for filing an EAJA application was 

August 11,2010.^^ This argument fails, because the "initial decision" of the administrative law 

judge was the Dismissal Order, not the Order on Notice. The judge dismissed the case in the 

Dismissal Order.^^ In contrast, in the Order onNotioe, the judge merely explained that he could 

not act on filings in the case, because he had already "dismissed this proceeding" and "there is no 

*' § 504(a)(2); see also 14 C.F.R. § 14.20(a) ("an application may be filed whenever the apphcant has prevailed in 

the proceeding, but in no case later than 30 days after tUetF.^ titocistcttuxiaks^'s final disposition of the 

proceeding"). 

° See § 14.20(c) (defining "final disposition" as the later ,o£v9lJgMS^ent^, including "the date on which an 

unappealed initial decision becomes administiratively ffcoal'j|. 

^* See § 13.233(a) (a party appealing a written initial decision must file a "notice of appeal not later than 10 days 

after ... service of the written initial decision on the parties"). 

'^ See Agency's Response to Apphcation, supra note 13, at 3, n. 1 (explaining that the deadline for filiag an appeal 

fell on July 6 because "the 10* day after June 23 was July 3, which fell on a Saturday" and Monday "was a Federal 

holida/'). 

" ^pUcant's Reply to Agency's Response, supra note 25, at 5. 

^ Order on Notice, supra note 10, at 1. 

^^ Apphcant's Reply to Agency's Response, supra note 25, at 5. 

'* Dismissal Order, jwpra note 4, at 1. 

- 8 -
en 

longer a pending proceeding in this docket." Therefore, the filing deadline should be 

calculated based on the Dismissal Order, making the Application untimely. 

Discretion to Extend the Filing Deadline 

The FAA argues that, because the Application was untimely filed, it must be dismissed. 

According to the FAA, the judge has no discretion to extend the filing deadline, because the 

deadline is "jurisdictional" and "may not be waived. "^^ The FAA also contends that waivers of 

sovereign immunity, such as the one granted in EAJA, must be "strictly construed in favor of the 

sovereign."^ However, the Supreme Court's decision in Scarborough v. Principi instructs 

otherwise. ^° 

In Scarborough, plaintiff prevailed against the Department of Veterans Affairs on a claim 

for disabiUty benefits.^^ Afterwards, he filed a timely EAJA application, but failed to allege that 

the government's position was not "substantially justified" as required by the application content 

specifications of EAJA.^^ Plaintiff attempted to amend his application, but only after the 30-day 

deadline for filing an application had passed.^^ The government argued that the application 

should be dismissed because EAJA's content and timing requirements are "jurisdictional" and 

waivers of sovereign immunity "must be construed strictly in favor of the sovereign."^'* The 

Supreme Court rejected these arguments. First, the Court held that EAJA's "30-day filing 

deadline for fee applications and its application-content specifications are not properly typed as 

'^ Order on Notice, supra note 10, at 1. 

^* Agency's Response to AppUcation, supra note 13, at 4 (citing MonarkBoat Co. v. NLRB, 708 F.2d 1322 (8th Cir. 

1983)). 

^' Id (quoting Escobar v. U.S. I.N.S., 935 F.2d 650 (4th Cir. 1991)). 

*° Scarborough v. Principi, 541 U.S. 401,414 (2004) (discussing 28 U.S.C. § 2412(d)(1)(B), the EAJA section that 

sets out the requirements for apphcations injudicial proceedings). 

"Ma t 408. 

*^ Ma t 409. 

''I d 

*"/</. at 409-10. 
•••BBB 

'jurisdictional.'"^^ Second, the Cotirt held that EAJA's waiver of sovereign immunity is not 

"conditioned on the fee applicant's meticulous compliance with each and every requirement... 

within 30 days of final judgment."^^ Instead, "limitations principles should generally apply tp 

the Government 'in the same way that' they eqjply to private parties. "^^ The Court reasoned that 

"once Congress waives sovereign immimity... the judicial application of a time prescription to 

suits against the Government, in the same way the prescription is applicable to private suits, 

'amounts to little, if any, broadening of the congressional waiver.'"^^ Thus, the Court concluded 

that plaintiff's EAJA application need not be dismissed. Rather, under the "relation-back" 

doctrine, plaintiff could amend his application to add the allegation that the govermnent's 

position in the underlying proceeding was not substantially justified. 

Based on the Supreme Court's decision in Scarborough, the Sixth Circuit held in 

Townsend v. Commissioner of Social Security that the 30-day filing deadline set forth in EAJA is 

subject to equitable tolling principles.^' In Townsend, an EAJA applicant did not file until over 

three months after the filing deadline. The district court held that, because the filing deadline is 

"jurisdictional in nature and must be strictly construed... it lacked the power to apply equitable 

tolling."'° On appeal, the Sixth Circuit reversed and remanded, noting that "time requirements in 

lawsuits between private litigants are customarily subject to equitable tolling."'^ Therefore, it 

" Id at 414. Although the FAA relies on MonarkBoat Co. v. NLRB. 708 F.2d 1322,1326 (8th Cir. 1983), -VAXK 

the Court of Appeals stated that "the EAJA's thirty-day time limitation" is a "jurisdictional requirement," that 

statement has been superseded by Scarborough, in wiiich the Supreme Court held that EAJA's filing deadline and 

appUcation-content specifications are not "jurisdictional." 

^Scarborough,5A\\].S. at ^19-201. 

*'' Id at 421 (quoting Franconia Assoc, v. U.S., 536 U.S. 129,145 (2002)). 

^ Id. (quoting Irwin v. Dep 't of Veterans Affairs, 498 U.S. 89,95 (1990)). Although the FAA relies on Escobar v. 

U.S. I.N.S, 935 F.2d 650,654 (4th Cir. 1991), where the Court of Ajqwals held that "waivers of sovereign inliriunity 

... must be strictly construed in favor of the sovereign, inScariiifroiigh, tile Supreme Court held that, with r^ec t to 

EAJA's filing deadline and apphcation-content specificatiodB,' littiitil^tis principles should apply to &e government 

in the same way that they apply to private parties. 

*' Townsend v. Comm 'r of Social Security, 415 F.3d 578,582 (6th Cir. 2004). 

TM Mat 581. 

^' Id at 582 (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95 (1990)). 

-10-
held that, under Scarborough, the filing deadline in EAJA should be subject to equitable tolling 

as well. 

In the present case, equitable tolling principles weigh in favor of permitting Empire tq 

file its Application after the deadline. As the Sixth Circuit explained in a second appeal after the 

remand in Townsend, factors that weigh in favor of equitable tolling include "1) lack of notice of 

the filing requirement; 2) lack of constructive knowledge of the filing requirement; 3) due 

diligence in pursuing one's rights; 4) absence of prejudice to the defendant; 5) the plaintiffs 

reasonableness in remaining ignorant of the particular legal requirement."''^ Here, Empire lacked 

notice of the filing requirement and was reasonable in remaining ignorant of it. Empire's 

counsel was not served with the Dismissal Order, because he was erroneously omitted from the 

service list. As a result, he did not become aware until later that the 30-day period for filing an 

EAJA application had started to run. Also, Eiripire was diligent in pursuing its rights. Despite 

not being served with the Dismissal Order, Empire was able to file its EAJA application on 

August 6, 2010, only one day after the filing deadline. Therefore, we find that the one-day delay 

can and should be excused. 

THE TIMELINESS AND ADEQUACY OF THE NET WORTH EXHIBIT 

The FAA argues that Empire's Application must be dismissed because Empire failed to 

submit a net worth exhibit along with its Application.^'* However, Empire attached a net worth 

exhibit to its Reply in order to remedy the omission in the Application.^^ Therefore, we consider 

whether Empire may amend its application to include a net worth exhibit after the filing deadline 

'^Id 

''' Townsend V. Comm'r of Social Security, 486 F.3d 127,132 (6th Cir. 2007). 

^* Agency's Response to Application, supra note 13, at 7. 

^' Applicant's Reply to Agency's Response, supra note 25, at Exhibit 5. 

-11 -
has elapsed and whether the net worth exhibit satisfies the requirements of the implementing 

regulations. 

Amendments to EAJA Applications 

As discussed above, the Supreme Court explained in Scarborough v. Principi that 

limitations principles should generally apply to the Government in the same way that they apply 

to private parties.^' Accordingly, the Court held that the"relation-back" doctrine governs 

whether an EAJA applicant should be permitted to amend his or her apphcation after the filing 

deadline has passed.'* Under the "relation-back" doetrine, an amendment to an EAJA 

application relates back to the date on which the initial application was filed if it '"arose out of 

the conduct, transaction, or occurrence set forth or attempted to be set forth' in the initial 

application."'^ For this reason, in Ventura Air Services^^ the administrative law judge's final 

decision on behalf of the FAA Adminisfrator*^ penmtted an EAJA applicant to belatedly submit 

a net worth exhibit after the filing deadline.*^ In Ventura, the EAJA applicant's initial 

submission simply asserted that the "Applicant is a corporation with a net worth of not more than 

$7 million and not more than 500 employees at the time the adversary adjudication was 

initiated,"*^ much like Empire's AppUcation in the present case.*'* The judge held that this 

"conclusory generalization" was "a far cry from the detailed financial data that the regulations 

^*5ee 14 C.F.R. §14.11. 

" Scarborough, 541 U.S. at 421. 

''Ma t 418. 

TM Id. (quoting Fed. Rule Civ. Proc. 15(c)(2)). See also Bazolo v. West, 150 F.3d 1380 (Fed. Cir. 1998) (EAJA 

applicant allowed to amend afier the 30-day deadline in order to pure a failure to estabhsh that the applicant satisfied 

the net worth eUgibility requirements). 

*° Ventura Air Serv., Inc., Docket No. FAA-2007-27540,2007 WL 2823772 (September 14,2007) (Benkin, A.L.J.). 

" See 14 C.F.R. § 14.28(a) (if neither party "seeks review within 30 days after [an initial] decision is issued, it shall 

become final"); Warbelow's Air Ventures, Inc., Docket No. FAA-2000-7215,2005 WL 3076623, at *2, n.lO 

(November 2,2005) (Voder, C.A.L. J.) ("Although a party may tqppeal this decision pursuant to 14 C.F.R. § 14.28(a) 

... the parties have agreed not to seek review of the administrative law judge's decision and that this decision may 

become the Final Decision in this proceeding."). 

"^ Kenft<rfl, 2007 WL 2823772, at *l-2. 

"7rf.at*l. 

^ Application, supra note 14, at 7. 

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o r 

prescribe." However, relying on Scarborough, the judge held that the applicant was entitied to 

amend its application to supply the missing information.^^ 

The net worth exhibit that Empire submitted with its Reply pertains to the same "conduct, 

transaction, or occurrence" set forth in its Application. The Application aims to show that 

Empire is entitled to recover under EAJA based on the Complaint filed by the FAA on February 

16, 2010.*^ Similarly, the net worth exhibit aims to show that Empire satisfied the net worth 

eligibility requirements of EAJA "on February 16, 2010, the date on which the Complaint was 

filed in this matter. "^^ Therefore, the net worth exhibit that Empire included with its Reply 

relates to its net worth on the date that Empire filed its Application and should be accepted. 

Sufficiency of Net Worth Exhibit 

Under the regulations implementing EAJA, the applicant must submit a net worth exhibit, 

showing "the net worth of the applicant and any affiliates when the proceeding was initiated."^^ 

Also, it must "provide[] fiill disclosure of the applicant's and its affiliates' assets and 

liabilities."^" Finally, it must "describe any fransfers of assets from, or obligations incurred by, 

the applicant or any affiliate, occurring in the one-year period prior to the date on which the 

proceeding was initiated, that reduced the net worth of the applicant and its affiliates below the 

applicable net worth ceiling."^^ 

On one hand, the regulations state that the net worth exhibit must be "detailed" and 

"sufficient to determine whether the applicant qualifies under the standards" for eligibility.^^ 

Thus, in Shooting Star Ranch, the Tenth Circuit decided that an applicant's "bare assertion that it 

*' Ventura, 2007 WL 2823772, at *l-2. 

'*Mat*3 . 

87 Application, supra note 14, at 1. 

'* Applicant's Reply to Agency's Response, supra note 25, at Exhibit 5. 

*'14 C.F.R.§ 14.11(a). 

*"§ 14.11(a). 

" § 14.11(b). 

" § 14.11(a). 

-13 -
meets the statutory criteria" was insufficient to show that it met the net worth ehgibility 

requirements.^^ There, the applicant had submitted "an unverified and unsworn letter from its 

accountant" and "did not even produce an affidavit of its net worth when faced with a challenge 

by the government."^'* On the other hand, the regulations state that "the exhibit may be in any 

form convenient to the applicant."^^ Thus, m. Air Sunshine the adminisfrative law judge's final 

decision on behalf of the FAA Adminisfratorheld that an apphcant's submission of a tax return 

satisfied the net worth exhibit requirement.^^ The judge explained that the regulations "do[] not 

require a statement specifically prepared for the purpose of showing the appUcant company's net 

worth," and that the tax return was sufficient to determine the applicant's eligibility.^' 

Here, Empire has provided more than a "bare assertion" that it meets the net worth 

eligibility requirements. It has provided a statement, "under penalty of perjury," from its 

president that Empire's net worth was "(-$900,000)" on February 16,2010, the date on which the 

FAA filed the Complaint; that Empire has no affiliates, its assets were $1,300,000, and its 

liabilities were $2,100,000 on February 16,2010; and that no transfers of assets or obligations 

reduced Empfre's net worth below the ceiling.^- Therefore, the net worth exhibit attached to 

Empire's Reply satisfies the requirements set fortii in section 14.11 of the implementing 

regulations. 

'^ Shooting Star Ranch, LLC V. C/.5., 230 F.3d 1176,1178 (lOfh Cir. 2000). 

^Id 

'^ § 14.11(a); see also U.S. v. 88.88 Acres of Land, 907 F.2d 106,108 (9th Cir. 1990) ("some informality of proof is 

appropriate," because a '"request for attorney's fees should not result in a second major litigation"') (quoting 

Hensley v. Eckerhart, 461 U.S. 424,437 (1983)). 

'* Air Sunshine. Inc., Docket No. FAA-2009-0094, 2009 WL 3696376, at *3 (November 4,2009) (Benkin, A.L.J.). 

'"M 

" Applicant's Reply to Agency's Response, supra note 25, at Exhibit 5. 

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THE PREVAILING PARTY REQUIREMENT 

In order to recover attorney's fees and expenses under EAJA, an applicant must have 

been a "prevailing party" in the underl)dng proceeding. ^^ The parties dispute whether Empire 

was a "prevailing party" within the meaning of section 504.^°° In their briefs, both parties 

assume that the Supreme Court's decision in Buckhannon Board and Care Home, Inc. v. West 

Virginia Department of Health and Human Resources'^' defines "prevailing party" for purposes 

102 

of 5 U.S.C. § 504. Nevertheless, we conclude that Buckhannon should not be extended from 

civil actions in federal court to adminisfrative enforcement proceedings under section 504. 

Furthermore, we conclude that Empire was the "prevailing party" in the underlying proceeding, 

in accordance with prior initial decisions by adminisfrative law judges, which became final 

decisions of the Adminisfrator. 

The Buckhannon Test 

In Buckhannon plaintiffs sued the State of West Virginia and others for declaratory and 

injvinctive relief on the groimds that a requirement of a state regulation violated the Fair Housing 

Amendments Act ("FHAA") and the Americans with Disabilities Act ("ADA").*°^ While the 

case was pending, the West Virginia legislature eliminated the requirement from the regulation, 

thereby mooting the case.\°'* Plaintiffs then sought attorney's fees under fee-shifting provisions 

" 5 U.S.C. § 504(a)(1) ("an agency that conducts an a:dversary adjudication shall award, to a prevailing party other 

than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the 

adjudicative officer of the agency finds that the position of the agency was substantially justified or that special 

circumstances make an award unjusf'); see also 14 C.F.R. § 14.01 ("an eligible party may receive an award when it 

prevails over the FAA"). 

"^ Agency's Response to Application, supra note 13, at 5; Apphcant's Reply to Agency's Response, supra note 25, 

at 6-17. 

"" Buckhannon Bd and Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598 (2001). 

'"^ See Agency's Response to Application, supra note 13, at 5; Applicant's Reply to Agency's Response, supra note 

25, at 6-17. 

' " Buckhannon, 532 U.S. at 601. 

'«^M 

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of the FHAA and ADA, both of which contain "jprgvailuig party" requirements.'°^ Plaintiffs 

argued that they had prevailed under the catalyst .theory, "which posits that a plaintiff is a 

'prevailing party' if it achieves the desired result bec^ e the lawsuit brought about a voluntary 

change in the defendant's conduct."'^^ The SupraiaeCpiirt,rejected plaintiffs' position. It 

reasoned that, tmder the catalyst theory, "a plaintiff pould recover attorney's fees if it estabhshed 

that the complaint had sufficient merit to withstand a. motion to dismiss."'^^ However, the Court 

concluded that a greater level of "legal merit" wa? r^yjipd in that case and adopted a more 

restrictive test. '"^ It held that, to qualify as a "prevailing party," a plaintiff must achieve (1) a 

material alteration in the legal relationship of theparti^ tihat is (2) judicially S£»nctioned.*°' 

Under this test, "a defendant's volxmtary change in CQndupt, although perhaps accomplishing 

what the plaintiff sought to achieve by the lawsuit," does not qualify plaintiff for "prevailing 

party" status, because it lacks sufficient judicial sanction. ^'° 

Whether Buckhannon Defines "Prevailjmg Parfar*? ^nder Section 504 

Subsequent to Buckhannon, many Circuit pp]Urts haye decided ih.dX Bucl^annon defines 

"prevailing party" for purposes of 28 U.S.C. § 2412,,the EAJA section that appHes to 

proceedings in federal court.'" On the other han4, it i^ , |iot been established that Buckhannon 

defines "prevailing party" for purposes of 5 U>S.Cv5.5j^.*^^ Notably, in Turner v. National 

Transportation Safety Board, the D.C. Circuit specifically declined to decide whether 

107 M at 605 (internal quotations omitted). 

'"»M \ 

"®M. at 604-05. 

""Mat 605. 

"' See, e.g.. Ma v. Chertoff, 547 F.3d 342, 344 (2d Cir. 2608) (action under 28 U.S.C. § 2412(d)(1)(A) against the 

United States Citizenship and Immigration Service^). v •', 

"^ Although section 2412, which governs EAJA a^li|5aiipn^ iii^i^*^^ feder4 court, is located in Titje 28, 

concerning the judiciary and judicial procedure, sectidfi^i)4,'»^ch governs EAJA applications in administrative 

adjudications, is located in Tide 5, an entirely different part of die U.S. Code, which relates to jBdministrative;. 

agencies. 

-16 ' 
Buckhannon applies to section 504."'' The D.C. Circuit explained that it has "never specifically 

held Buckhannon defines 'prevailing party' as it is used in § 504(a)(1), which governs feeshifting in an agency adjudication," that its cases so far "have all involved 28 U.S.C. § 

2412(d)(1)(A), which concerns fee-shifting in a civil action," and that it declined to determine at 

that time "whether the understanding of 'prevailing party' in Buckhannon necessarily or always 

applies to that phrase in § 504(a)(1).""'* 

In Buckhannon, the Supreme Court was concerned that, under the catalyst theory, a 

plaintiff would be entitled to recover attorney's fees simply because it had succeeded in 

pressuring a defendant into changing its behavior, even though the lawsuit itself was meritless."^ 

In contrast, entirely different policy concerns are implicated when a government agency brings a 

meritless enforcement action against a private defendant,'"^ as occurred here."^ In this case, 

Empire "did not initiate a cause of action against a governmental agency to challenge the legality 

11 o 

of its actions." Instead, Empire was "given a choice to either acquiesce" and pay a civil 

"^ Turner v. NTSB, 608 F.3d 12, 15, n.3 (D.C. Cir. 2010). 

' ''* Id. The court determined that the applicants were not prevailing parties, because the judge dismissed the case 

without prejudice and caused no change in the relationship between the parties. Id. at 15-16. Neither party raised 

the question of whether Buckhannon applied to § 504(a)(1), and consequenfly the coiut did not consider that 

question. Id. at 15, n.3. In the underlying NTSB action, Applications of Turner and Coonan, NTSB Order No. EA5467,2009 WL 2419616, at +5-6 (July 29,2009), die NTSB held that Buckhannon defines "prevaihng party" for 

both sections 2412 and 504 of EAJA, treating "the question as essentially a matter of purely legal interpretation," 

without considering "potentially competing poHcy considerations" and the significant differences between EAJA 

applications by plaintiffs in federal court and applications by defendants in administrative adjudications. In dissent, 

Member Simiwalt argued that the analysis in Buckhannon, which involved "a plaintiflPs tenuous EAJA claim," 

should not be applied to the situation in which an applicant is "forced into a defensive posture .. . due solely to the 

actions of the Administrator." Id. at *10. The decision of the NTSB is not binding precedent in this proceeding; and 

its "weight as authority" depends upon "the persuasiveness of its reasoning." See Tri State Aero, Inc., Docket No. 

FAA-2007-27917,2008 WL 503398, at *10 (February 22, 2008) (Benkin, A.L.J.). We find the dissenting member's 

reasoning in Applications of Turner and Coonan to be more persuasive than the majority opinion, and more 

consistent with the legislative history and purpose of section 504. 

' " Buckhannon, 532 U.S. at 605-06. 

"* See Applications of Turner and Coonan, 2009 WL 2419616, at "^lO (Sumwalt, Member, dissenting). 

" ' See Complainant's Motion to Withdraw, supra note 5, at 1, T[ 3 (explaining that the FAA brought its enforcement 

action against the wrong entity by mistake). 

TM See Applications of Turner and Coonan, 2009 WL 2419616, at *10 (Sumwalt, Member, dissenting). 

-17 -
penalty or to defend itself and incur attorney's fees and expenses."^ This dilemma is precisely 

what Congress sought to address when it enacted EAJA. Congress was concerned that, due to 

the expense of litigation, small businesses might simply settle with the government rather thap 

assert their legal rights.^^° Therefore, Congress created aright to recover attorney's fees to 

191 

empower small businesses to challenge unreasonable government action. Given that the 

Supreme Court's concems in Buckhannon differed so greatiy from the policy concems 

implicated by adminisfrative enforcement actions, we conclude that we should not apply the 

Buckhannon test for "prevailing party" to an application under section 504 and thereby frusfrate 

Congress's primary purpose for enacting that section. 

Here, the FAA admits that it sued Empire hy mistake and that it believes an unrelated 

party committed the alleged violations.'^^ It seems, therefore, that the FAA's action against 

Empfre was the kind of tmreasonable government action that Congress hoped EAJA would deter. 

The FAA also argues that Empfre caimot recover because Empfre was not the "prevailing 

party" in the imderlying action, noting that under Buckhannon one must achieve a judicially 

sanctioned change in the parties' legal relationship to qualify as a "prevailing party," and a 

"defendant's voluntary change in conduct" doesf pot qualify a plaintiff for "prevailing party" 

status, because it lacks judicial sanction.*^ Tlie FAA reasons that, because it voluntarily 

withdrew its Complaint, the adminisfrative Ik^ j1i||lge did not sauction any change iu the parties' 

relationship;*^'* the judge's dismissal of lie Complaint was merely an "adminisfrative 

housekeeping measure," not judicially sanctiohesd if0Hfef|*^ and the judge did not exercise any 

TM See id 

'^^ See supra pp. 4-5 and notes 32-34. 

'^ See Conqjlainant's Motion to Withdraw, supra note 5, at \, ^3 . 

'^ 5McAAtfn«on, 532 U.S. at 604-05. 

'^ See Agency's Response to Application, supra note 13, at 6. 

' " Id (quoting Turner v. NTSB, 608 F.3d 12,16). 

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discretion in dismissing the Complaint with prejudice. Rather, the FAA contends that the judge 

dismissed the Complaint with prejudice only because the applicable Rules of Practice compelled 

him to do so.'^^ Therefore, the FAA argues that Empire was not the "prevailing party." 

As discussed above, we do not agree that the Buckhannon test for "prevailing party" 

should be extended to EAJA cases under section 504. Even if applied in some form, the 

Buckhannon test should not be extended to exclude volimtary dismissals sanctioned by a judge's 

order of dismissal with prejudice. Firstiy, even though some courts have suggested that the 

"judicial sanction" element of the Buckhannon test requires an exercise of judicial discretion or 

continuing judicial supervision, these cases did not involve EAJA applications under section 

504;'^^ and it has not been established that a judge's dismissal with prejudice under 14 C.F.R. § 

13.215 does not constitute judicially sanctioned relief Under § 556(c) of the Adminisfrative 

Procedure Act ("APA"), the adminisfrative law judge has the power to "rule on offers of proof 

and receive relevant evidence [§ 556(c)(3)], "regulate the course of the hearing" [§ 556(c)(5)], 

"hold conferences for the settlement or simplification of the issues by consent of the parties" [§ 

556(c)(6)], "dispose of procedural requests" [§ 556(c)(9)], "make or recommend decisions" [§ 

556(c)(10)], and "take other action authorized by agency rule consistent with this subchapter" [§ 

'^* See id. at 6 (citing 14 C.F.R. § 13.215 ("if an agency attorney withdraws the complaint... the administrative law 

judge shall dismiss the proceedings imder this subpart with prejudice")). Though the administrative law judge 

dismissed the Complaint pursuant to § 13.215, it does not necessarily follow that he exercised no discretion in doing 

so. See Tourist Enterprise Corp. "ORBIS," CAB Docket 27914, Recommended Decision, dated September 23, 

1977, p. 15, n. 9, adopted. Order 78-5-11, p. 2; Woodbury Horse Transportation, FHWA Docket Rl-88-1, Order 

served June 13, 1989, p. 6, n. 3, remanded on other grounds. Order dated September 25, 1989; American Airlines, 

FAA Docket CP91SW0142, Order served August 21, 1991, p. 2, n. 1; USAir, Inc., FAA Docket CP90NE0359, 

Order served September 30, 1991, p. 3, n. 4; Vincent J. Medel, FAA Docket CP91SO0180, Order dated October 9, 

1992, p. 16, n. 16, affd inpart, rev'd inpart, FAA Order 93-13 (March 25, 1993); Matter of Thomas Farrell, CFTC 

Docket 92-22, Order dated November 24,1992, p. 3, n. 8. 

''^ See, e.g.. Highway Equip. Co. v. FECO, Ltd., 469 F.3d 1027 (Fed. Cir. 2006) (where plaintiff voluntarily 

withdrew its complaint under the Federal Rules of Civil Procedure and the trial court then dismissed it with 

prejudice, the Court of Appeals found "judicial sanction" because the Federal Rules of Civil Procedure gave die trial 

court discretion over whether to dismiss die complaint with prejudice); Richards v. DBS, 317 F.3d 1080, 1088 (9th 

Cir. 2003) (a settlement between the parties went beyond a "purely private settlement agreement" because the court 

incorporated the terms of the settlement agreement into an order and retained jurisdiction over the case). 

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557(c)(ll)]; and an agency is without authority to withhold those powers from adminisfrative 

law judges acting imder the APA.'^* In fact, under the regulations, the proceeding before the 

adminisfrative law judge could not be dismissed without the judge's issuance of a dismissal 

order; and in issuing a dismissal order with prejudice, the judge exercised powers enimierated in 

the APA and contemplated by the regulations. Consequently, even {{Buckhannon were read to 

requfre judicial sanction under section 504, the Dismissal Order should be deemed to constitute 

judicially sanctioned relief, which changed the relationship of the parties and barred further 

proceedings against Empire. 

The rule of law proposed by the FAA would "erect[] a procedural bar to the recovery of 

attomey's fees under the EAJA whenever the [agency] voluntarily withdraws its case prior to a 

hearing,"'^^ even when the agency's position is «itirely unjuistified and the defendant has 

incurred attomey's fees in protecting itself It would not only "close[] the door to relief on 

Empire in the present case, but also "quite possibly on himdreds - if not thousands - of similarlysituated applicants to come."'^° Accordingly, we will not adopt a rule that would so clearly 

fiiisfrate Congress's intent in enacting EAJA. 

FAA Precedents 

Even after Buckhannon, adminisfrative law judges have held in final decisions for the 

Adminisfrator that the FAA's decision to YQlutttajrily withdraw its con^)laint can form the basis 

'^^ ATTORNEY GENERAL'S MANUAL ON THE ADI^HNKTRAITVE PROCEDURE ACT 74, reprinted in, 

FEDERAL ADMINISTRATIVE PROCEDURE SOURCHE^K 140 (1985): 

The quoted language [of § 556(c) of the APA} autoai^c&Uy vests in hearing officers the 

((numerated powers to the extent that such powers havft'beea' given to the agency itself i.e., 

'within its powers.' Inother words, not only are^emtD^dra^powers thus given to hearing 

ofScers by section [556(c)] without the necessityfof Jest^lbfttss dgency delegation, but ttit agency is 

without power to withhold such powers fiom itshoit^iSffioerg [no'vi^ adininistrative law jtidges]. 

'^' See Applications of Turner and Coonan, 2009 WL.2419616» it *H (Sumwalt, Member, dissenting). 

"" 5ee irf. at *9 (Sumwalt, Member, dissenting). 

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for an EAJA claim.^^' In Stark Avionics, the FAA alleged nine violations of the Federal Aviation 

Regulations.'^^ Then, respondent filed a motion for decision, and the adminisfrative law judge 

granted it with respect to three of the charges. Afterward, the FAA voluntarily withdrew the 

remainder of its complaint pursuant to 14 C.F.R. § 13.215,'^'' just as the FAA did here. 

Respondent then filed an EAJA application. The judge held that "voluntary dismissal may form 

the basis for an EAJA claim."'^^ Therefore, even though the FAA had voluntarily withdrawn 

some of its charges, the judge held that respondent was the "prevailing party" on all of the 

alleged violations.'^^ We conclude that such a withdrawal of an vmwarranted complaint against a 

respondent establishes the respondent as a "prevailing party" and should support an EAJA claim 

under section 504. 

In Western Air, the FAA voluntarily withdrew its notice of claim against respondent, but 

the adminisfrative law judge decided that respondent was not a "prevailing party" within the 

meaning of EAJA, because the reason for the withdrawal was unknown: 

The Applicant's papers assume that it was the "prevailing party" for EAJA 

purposes because the FAA's claim against it was withdrawn. That is an 

unwarranted assxmiption. The question it must answer is: Whv was the claim 

withdrawn? The record of the underlying proceeding, on which a decision under 

the EAJA must be based, 14 C.F.R. § 14.04(a), is silent on this point. Absent such 

proof, I am requfred to conclude that the Applicant does not qualify as a 

prevailing party. *^^ 

" ' See Stark Avionics. Inc., Docket No. FAA-2006-26329,2006 WL 3530425, at *3 (November 29,2006) (Benkin, 

A.L.J.); Western Air Express. Inc., Docket No. FAA-2009-0280,2009 WL 1765808, at *2 (June 19,2009) (Benkin, 

A.L.J.); Green Aviation Management. Co., Docket No. FAA-2007-26989,2008 WL 441796, at *2 (January 16, 

2008) (Benkin, A.L.J.). That conclusion also accords with the legislative history of section 504. See H.R. Rep. 99-

120(1) (1985) reprinted in 1985 U.S.C.C.A.N. 132,141-42: "When tiie case is conceded on the merits, dropped by 

the agency, or otherwise settied on terms favorable to the private party before any of the merits are heard, die court 

(or adjudicative officer) will again look to the record in flie case to determine whether the position of the 

government was substantially justified." 

'^^StarkAvionics. Inc., 2006 WL 3530425, at +1. 

"*Mat*2. 

"^W.at*3. 

'''Id 

' " Western Air Express. Inc., 2009 WL 1765808, at *2. 

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In the present case, the FAA admitted that it withdrew its Complaint because it 

mistakenly took action against the wrong party. Therefore, even under the more restrictive 

approach in Western Air, the record provides an explanation for the agency's withdrawal and, 

supports a finding that Empire was the "prevwling party" in the underlying action. We conclude 

for the reasons set forth above that Empire was the "prevailing party" within the meaning of 

section 504 and the FAA's regulations. 

THE REASONABLENESS OJ" THE AWARD SOUGHT 

The FAA has not contended that the amount of the award sought by Empfre is 

imreasonable tmder the statute and implementing regulations. According to Empfre, this issue 

therefore need not be considered.'^^ However, the regulations indicate that the adminisfrative 

law judge should make an independent determination regarding the reasonablraiess of any 

award.'^^ Having considered all of the relevant faptois specified in the regulations, we conclude 

that the amount of the award sought by Empfre is^propriate except in so far as it exceeds the 

amount permitted under the statute and regulations, and consequently we reduce it accordingly. 

Empire seeks an award of $4,980, consisting of $4,440 in attomey's fees, $510 in 

paralegal fees, and $30 in legal assistant fees.''*® The $4,440 in attomey's fees was calculated 

based on the 14.8 hotirs that Empire's counsel worked on the matter, multiplied by a rate of $300 

"' Applicant's Reply to Agency's Response, supra note 25, *t 1-2. 

"' 14 C.F.R. § 14.05(c) provides that, "in determining tbe^wasonftblei^gss of the fee sought for an attorney, agent, or 

expert witiiess, the AU or adjudicative ofiScer shajl considfls .the fpUo^wng; (1) If the attorney, agent, or witness is in 

private practice, his or her customary fee for simile s^j^ceStCf.if a[^9nq>loyj9^^ applicant, the fiiUy alldcated 

cost of the services; (2) The prevailing rate for sitaUar,8ervicesi^&e community in \^4iidi tiie attorney, agen^ or 

witiiess ordinarily performs services; (3) The time aptualjy fp^^j^ iixi rq)resentation of the applicant; (4) The time 

reasonably spent in light of the difficulty or conqilexi^ of 1& ^ifuep mtho proceeding; and (5) Such other &ctors as 

may bear on the value of the services provided." Additionally, section 14.05(a) provides that "awards will bo based 

on rates customarily charged by persons engaged in the business of acting as attorneys, ageots^ and expert witoesses, 

even if the services were made available without charge or at a reduced rate to the applicant." Section 14.05(b) 

provides that "no award for the fee of an attorney or agent luder this part may exceed $ 125 per hour, or suclf rate as 

prescribed by 5 U.S.C. 504." Finally, section 14.05(e) provides fliat "fees may be awarded only for work performed 

after the issuance of a complaint." 

'*" Application, supra note 14, at 7. 

-22-
per hour.'"^' However, under 5 U.S.C. § 504(b)(1)(A), "attorney or agent fees shall not be 

awarded in excess of $125 per hour unless the agency determines by regulation that an increase 

in the cost of living or a special factor .. . justifies a higher fee." Under 14 C.F.R. § 14.05(b),, 

"no award for the fee of an attorney or agent under this part may exceed $ 125 per hour, or such 

rate as prescribed by 5 U.S.C. 504." Because the agency has not determined by regulation that 

permitting EAJA applicants to recover a higher hourly rate for attomey's fees is justified, the 

amount of attomey's fees that Empire can recover is capped at a rate of $125 per hour.'"*^ 

Based on a rate of $125 per hour,^"*^ Empire is entitled to recover $1,850 in attomey's 

fees. When the paralegal and legal assistant fees are included, Empire is entitled to a total award 

of $2,390. 

CONCLUSION 

Accordingly, we conclude that Empire's Application vinder EAJA should be granted and 

award Empire $2,390 in attomey's fees and expenses. 

SO ORDERED. 

T%jfie A. Yodi 

Chief Adminisfrative 

Attachment - Service List 

Id 141 

'*^ See Lisa Bowden, Docket No. FAA-2004-24154,2006 WL 1403756, at *5, n.7 (May 16, 2006) (Benkin, A.L.J.) 

(although "the normal hourly billing rate for [the applicant's] counsel during the period ranged between $380 and 

$495," the regulations nonetheless impose a cap of "$125 per hour"). 

'*' I find that a rate of $125 per hour is reasonable in light of the requirements of 14 C.F.R. § 14.05. See supra note 

139. 

23 
Note: Pursuant to the FAA Rules of Practice, 14 C.F.R. § 14. 28 and § 13.233, a party that 

wishes to appeal this decision must file a written Notice of Appeal with the Federal 

Aviation Administration. The notice must be filed in the FAA Hearing Docket using the 

appropriate address listed in § 13.210(a). The ntitiee must be fQed no later than ten (10) 

days after the service date indicated on this decision, and it must also be served on the 

opposing party. Filing a notice of appeal wi^Mbfe Judge is not sufficient. If neither tiie 

applicant nor the FAA's counsel seeks review within thirty (30) days after the decision is 

issued, it becomes final. 

•24-
FAA Docket No. CP10EA0008 

(Equal Access to Justice Act) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000^''^ 

ONE COPY 

Gregory S. Winton, Applicant's Counsel 

One Research Court, Suite 450 

Rockville, MD 20850 

TEL: 301-294-8550 

FAX: 301-294-2525 

Zachary M. Berman, Agency's Counsel 

Office of the Regional Counsel 

Federal Aviation Adminisfration 

1 Aviation Plaza 

Jamaica, NY 11434 

TEL: 718-553-3258 

FAX: 718-995-5699 

The Honorable Ronnie A. Yoder, Chief Administrative Law Judge 

U.S. Department of Transportation 

Office of Hearings, M-20, Room El 2-320 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

TEL: 202-366-2142 

FAX: 202-366-7536 

'^ Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building—Suite 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430. 

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