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UNITED STATES DEPARTMENT OF TRANSPORTATION ^:^| ^ 

FEDERAL AVIATION ADMINISTRATION ' I cl uiU.i 

WASHINGTON, DC 

••;; J'^ii ?2 P 2: i 3 

In the Matter of: WESTERN AIR EXPRESS, INC. 

FAA Order No. 2011-7 

Docket No. CP09SW0003 

FDMS No. FAA-2009-0280' 

Served: June 13,2011 

DECISION AND ORDER' 

Western Air Express, Inc. ("Western") appealed from the initial decision issued 

by Administrative Law Judge Isaac D. Benkin (the "ALJ"), denying Western's 

application for agent fees and expenses under the Equal Access to Justice Act ("the 

EAJA"), 5 U.S.C. § 504.^ The EAJA provides that an agency that conducts an adversary 

adjudication shall reimburse the prevailing party for fees and other expenses incurred in 

connection with that adjudication, including reasonable attorney or agent fees, unless the 

government's position was substantially justified or special circumstances make an award 

unjust. 5 U.S.C. §§ 504(a)(1), (b)(1)(A). The ALJ held that Western was not entitled to 

reimbursement of agent fees and expenses under the EAJA because Western was neither 

a party to an adversary adjudication nor a prevailing party. He held further that the EAJA 

' Generally, materials filed in the FAA Hearing Docket (except for materials filed in 

security cases) are also available for viewing at http://www.regulations.gov. 14 C.F.R. 

§ 13.210(e)(1). 

' The Administrator's civil penalty decisions, along with indexes of the decisions, the rules 

of practice, and other information, are available on the Internet at the following address: 

www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjiidicatiori/AGC400/ 

Civil_Penalty. See 14 C.F.R. § 13.210(e)(2). In addition, Thomson/West publishes Federal 

Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS library) and 

WestLaw (FTRAN-FAA database). For additional information, see the Web site. 

' A copy of the ALJ's decision denying Western's EAJA application is attached and will 

be referred to in this decision and order as "EAJA Initial Decision." 
does not authorize reimbursement for the services of a corporate employee, such as 

Western's representative, who is not an attorney. In its appeal, Western challenges each 

M 

it of the ALJ's legal determinations. 

;l Western's appeal is denied. This decision affirms the ALJ's rejection of 

;f Western's claim that an adversary adjudication began when Western received the notice 

[; and final notice proposing to assess a civil penalty. Further, this decision holds that 

Western was not a prevailing party, as that term is used in the EAJA, because neither the 

ALJ's dismissal of Western's late-filed request for hearing nor the Administrator's 

dismissal of Western's appeal as moot constituted administratively ordered relief. 

I. History of the Underlying Civil Penalty Action 

On May 28,2008, the FAA issued a Notice of Proposed Civil Penalty ("NPCP"), 

proposing to assess a $33,000 civil penalty against Western for alleged violations of 

14 C.F.R. § 119.5(1).^ On July 23, 2008, the FAA sent a Final Notice of Proposed Civil 

Penalty ("FNPCP") to Western because Western had not replied to the NPCP.^ 

On August 11, 2008, an FAA inspector delivered "courtesy copies" of the NPCP 

and FNPCP to James Nyerges, Western's Chief Pilot, Director of Maintenance, and 

Director of Operations. 

•* 14 C.F.R. § 119.5(1) provides that "[n]o person may operate an aircraft under this part, 

part 521 of this chapter, or part 135 of this chapter in violation of an air carrier operating 

certificate, operating certificate, or appropriate operations specifications issued under this part." 

' Under 14 C.F.R. §§ 13.16(f)(2)((iii) and (iv), a person has no more than 30 days after 

receiving the NPCP to, among other options, request an informal conference with an agency 

attorney or a formal hearing before an ALJ. 
On August 18, 2008, Western sent a request for an informal conference to the 

agency attorney by facsimile. The next day, the agency attorney denied the request, and 

issued an order assessing a $33,000 civil penalty ("OACP").* 

On September 4, 2008, Western sent a request for hearing to the Hearing Docket. 

In response, rather than file a complaint, the FAA filed a motion to dismiss Western's 

request for hearing under 14 C.F.R. § 13.208(d). In the motion, the FAA argued that 

Western's September 4, 2008, request for hearing was late-filed. The agency attorney 

explained that while Western had 15 days fi^om the receipt of the FNPCP to request a 

hearing under 14 C.F.R. §§ 13.16(d)(2) and 13.16(g)(2)(ii),^ it did not submit the request 

until 43 days after the FNPCP was mailed originally and 24 days after the FAA inspector 

hand-delivered a "courtesy copy." (Motion to Dismiss at 4.) 

Western responded to the motion to dismiss, arguing that it did not receive the 

copies of the NPCP or FNPCP that the agency attorney had sent by certified or by regular 

mail^ and that the local post office is unreliable. (Answer to Complainant's Motion to 

Dismiss Respondent's Request for a Hearing as Untimely Filed, dated September 24, 

* A person has no more than 15 days after receipt of the FNPCP to request a formal 

hearing and does not have the right by regulation to an informal conference under 14 C.F.R. 

§ 13.16(g)(2). The agency has stated, however, that an agency attorney has the discretion and 

authority to hold an informal conference even after issuing an FNPCP. 55 Fed. Reg. 27548, 

27559 (July 3, 1990). The agency may issue an Order Assessing Civil Penalty if the person does 

not request a hearing within 15 days after receipt of the FNPCP. Under 14 C.F.R. § 13.16(d)(2), 

an agency attorney may issue an "order assessing civil penalty ... if a person charged with a 

violation does not request a hearing under paragraph (g)(2)(ii) of this section within 15 days after 

receipt of a final notice of proposed civil penalty." 

^ See n. 6 supra. 

* The certificates of service attached to the NPCP and FNPCP show that the agency sent 

these documents to Western by certified, return receipt mail, as well as by regular mail. The 

certified mail envelopes were returned to the agency attorney stamped "UNCLAIMED." 

According to the agency attorney, the NPCP and FNPCP sent by regular mail were not returned. 
2008.) Western explained that it had filed its request for hearing within fewer than 30 

days after the FAA inspector delivered the NPCP, and therefore, its request for hearing 

was timely filed under 14 C.F.R. § 13.16(f)(2).' 

The ALJ rejected Western's argument that it had filed the request for hearing in a 

timely fashion. The ALJ explained that Western was not entitled to ignore the FNPCP, 

which "plainly and unmistakably advised" Western that it had 15 days firom the date of 

receipt to request a hearing. The ALJ wrote: 

Even if we accept the contention that the 15-day period for filing a request for 

hearing did not begin to run until August 11 (the date on which the FAA inspector 

hand-delivered the notices to Mr. Nyerges), the Respondent's request for a 

hearing was still out of time. The 15-day period expired on August 26, 15 days 

after the date of hand-delivery. 

(Initial Decision at 3.)^° 

Western filed a notice of appeal from the ALJ's order dismissing the request for 

hearing, and subsequently perfected that appeal by filing an appeal brief. On 

February 17, 2009, the FAA withdrew the NPCP, FNPCP and OACP, and filed a motion 

requesting that the Administrator dismiss Western's appeal as moot. The Administrator 

dismissed Western's appeal as moot on March 12, 2009, by FAA Order No. 2009-5. 

' See n. 5, supra. 

'" The ALJ rejected Western's contention that both certified letters "went astray" and, 

instead, found that Western had neglected to pick up the certified letters even though notices had 

been placed in its mail box about that certified mail from the FAA. He wrote: 

A program of regulation, such as that administered by the Federal Aviation 

Administration, cannot be carried out in the public interest if parties subject to the 

regulations could avoid their responsibilities simply by refiising to accept mail from the 

regulatory agency. It is plain to me that that is what Respondent sought to do. 

(Initial Decision at 3-4.) 
II. History of the EAJA Action 

On April 1,2009, Western applied for an award under the EAJA of fees and 

expenses that it incurred in connection with this civil penalty action. Western sought 

reimbursement for fees paid to Mr. Nyerges, its non-attorney agent and representative, 

for work starting on August 11, 2008, the date on which the FAA inspector delivered the 

NPCP and FNPCP. Western argued in its application that it was the prevailing party 

because the FAA withdrew the NPCP, FNPCP and OACP and the Administrator 

subsequently dismissed Western's appeal from the ALJ's order. (Application at ^^ -1-8.) 

In its answer to the application, the FAA argued that Western was not entitled to 

an award because Western was not a prevailing party in an adversary adjudication and 

that the EAJA does not permit reimbursement of fees paid to an employee. 

Western subsequently filed its reply. It argued that Kim Hall, Western's 

president, was Western's only employee and the corporation's "true alter ego and 

principal," and that Mr. Nyerges, an independent consultant, was its agent. (Reply at 

5-6.) 

The ALJ issued his initial decision denying Western's application for fees and 

expenses on June 19, 2009, finding that (1) there was no adversary adjudication; 

(2) Western was not a prevailing party; and (3) the EAJA does not permit reimbursement 

of the time spent by a corporate employee. (EAJA Initial Decision at 2-3.) 

Western filed a notice of appeal from the ALJ's EAJA initial decision and 

perfected that appeal by filing an appeal brief The FAA filed a reply brief. 
i n . Discussion 

A. Adversary Adjudication 

Under the EAJA, an agency that conducts an adversary adjudication shall award 

to a prevailing party fees and other expenses incurred by that party in certain 

circimistances. 5 U.S.C. § 504(a)(1) Contrary to Western's assertion, an adversary 

adjudication did not begin with its receipt of the NPCP and FNPCP. 

The EAJA defines the term "adversary adjudication" as "an adjudication under 

[5 U.S.C.] section 554 ... in which the position of the United States is represented by 

counsel or otherwise ...." 5 U.S.C. § 504(b)(1)(C). Section 554 of Title 5 applies only to 

adjudications" "required by statute to be determined on the record after opportunity for 

an agency hearing ...," with six exceptions not pertinent in this case. 5 U.S.C. § 554. 

The FAA's regulations implementing the EAJA cover "adjudications under 5 U.S.C. 

§ 554 in which the position of the FAA is represented by an attorney ... who enters an 

appearance and participates in the proceeding." 14 C.F.R. § 14.02. The FAA's EAJA 

regulations provide further that regarding FAA civil penalty proceedings, "fees may be 

awarded only for work performed after the issuance of a complaint." 14 C.F.R. 

§ 14.05(e). 

Western argues that "it is clear that the essential characteristic of an adversary 

adjudication is the opportunity for an agency hearing" and that "[t]he point at which this 

opportunity [for a hearing] arises ... is the point at which a proceeding can first be 

considered an adversary adjudication." (Appeal Brief at 5.) In response, the FAA argues 

that an adversary adjudication does not begin until a complaint is filed. 

" The term "adjudication" is defined broadly in the Administrative Procedure Act, 

5 U.S.C. § 551(7), as the "agency process for the formulation of an order", and the term "order" 

is defined at 5 U.S.C. § 551(6) as "the whole or a part of a final disposition, ... of an agency in a 

matter other than rule making but including licensing." 
Although a civil penalty action is initiated by the sending of a NPCP by an agency 

attorney, 14 C.F.R. § 13.16(f), an adversary adjudication, as that term is used in the 

EAJA, does not begin with the issuance of a NPCP. In the NPCP and the FNPCP, the 

agency attorney states that based upon an investigation, it appears that a person has 

violated a statute and or regulations and it proposes to assess a civil penalty. An 

admuiistrative law judge is not involved during these informal proceedings.'^ The FAA 

is not required to file either the NPCP or the FNPCP in the Hearing Docket. See 

14 C.F.R. §§ 13.16 (f) and (g). In contrast, when a complaint is filed in the Hearing 

Docket, a formal proceeding before an ALJ begins with the agency attorney representing 

the FAA's position that violations have occurred and that a civil penalty is appropriate. 

The parties in an adversary adjudication seek resolution of their dispute by an 

adjudicative official, such as an ALJ. 

In Ernest Wilson, FAA Order No. 1990-17 (April 9, 1990), the Administrator held 

that an applicant is not entitled to fees incurred in connection with a NPCP and informal 

'^ The FAA explained the rationale for this informal process in the preamble to the final 

rule setting forth revised initiation procedures and new procedural rules in FAA civil penalty 

actions after Congress authorized the FAA to assess some civil penalties. The FAA wrote: 

Based on the FAA's experience in certificate action, the FAA believes that a hearing on 

the allegations contained in a notice, which is merely a proposal, is premature. The 

notice is issued after the FAA has completed an investigation of the allegations. 

However, the individual may or may not have taken part in the investigatory process.... 

Therefore, the rule provides an opportunity for informal proceedings in which an 

individual may submit information or discuss the matter with an agency attorney. These 

informal proceedings enable an individual to submit information including mitigating 

factors or extenuating circumstances that may affect the FAA's decision to continue to 

prosecute a civil penalty action. The FAA views the informal proceedings as an 

opportunity to narrow the differences between the parties with the intention of settling a 

civil penalty action. Even if the parties cannot agree to settle the matter, the informal 

proceedings serve to focus any remaining unresolved issues. 

53 Fed. Reg. 34646, 34648 (September 7, 1988) (emphasis added.) 
conference with an agency attorney. In that case, the agency issued a NPCP and 

subsequently withdrew it after an informal conference. Wilson submitted an EAJA 

application. The Administrator rejected the application, holding that legal expenses 

incurred prior to the filing of the order of civil penalty as the complaint'^ are not incurred 

in connection with an adversary adjudication, and hence, were not reimbursable under the 

EAJA. 

Accordingly, contrary to Western's argument, the issuance and receipt of the 

NPCP and the FNPCP in this case did not mark the beginning of an adversary 

adjudication although in these documents, the FAA offered Western the option to request 

a formal hearing governed by 14 C.F.R. Part 13, subpart G. In this case, Western 

forfeited that option by failing to request a hearing in a timely fashion.'" 

B. Prevailing Party Status 

Ordinarily, in the United States, each party is responsible for its own attorney's 

fees and costs, and therefore, the winner is not able to obtain reimbursement of its 

litigation expenses fi-om the loser. However, numerous statutes permit a court to award 

'^ The original procedural rules required that after receiving a request for hearing, the 

agency attorney would issue an order of civil penalty and file it as the complaint in the Hearing 

Docket. 14 C.F.R. §§ 13.16(h) and 13.208 (published at 53 Fed. Reg. 34646, 34655, 34657 

(September 7, 1988). Subsequently, the FAA received objections that the issuance of an order of 

civil penalty prior to a hearing "creates an apparent presumption of guilt before any hearing has 

been held." 55 Fed. Reg. 7980, 7981 (March 6, 1990). hi response, the FAA proposed to amend 

the rules so that if an agency attorney received a request for hearing, the agency attorney would 

file a complaint but would not issue an order of civil penalty, and these changes were adopted in a 

final rule. 55 Fed. Reg. 15110, 15112, 15129, 15130 (April 20, 1990). Also in that final rule, the 

FAA conformed the EAJA procedural rule, 14 C.F.R. § 14.05(e), changing it from "[f]ees may be 

awarded only for work performed after the issuance of an Order of Civil Penalty (54 Fed. Reg. 

46196, 46201 (November 1, 1989)) to "[fjees may be awarded only for work performed after the 

issuance of a complaint." 55 Fed. Reg. at 15125 and 15131 (emphasis added). 

'" The issue of whether an adversary adjudication begins when an agency attorney files a 

motion to dismiss a late-filed request for hearing, instead of a complaint, is not decided herein 

because it was not raised or briefed by either party. 
attorney's fees and expenses to the prevailing party in certain circumstances. 

Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human 

Resources, 532 U.S. 598, 602 (2001). The EAJA is one of those fee-shifting statutes. 

The EAJA is also a waiver by the Federal government of its sovereign immunity, and 

consequently, it "must be construed strictly in favor of the government." Aronov v. 

Napolitano, 562 F.3d 84, 88 (f' Cir. 2009). 

Buckhannon is the leading case regarding who is a prevailing party under feeshifting statutes. That case arose after the West Virginia Department of Health and 

Human Resources (West Virginia HHS) issued cease and desist orders requiring the 

closure of the assisted living facilities operated by Buckhaimon because, contrary to West 

Virginia law, some of the residents of those facilities were incapable of escaping in the 

event of an emergency. Buckhannon filed a lawsuit, arguing that the West Virginia "selfpreservation" requirement violated the Fair Housing Amendments Act (FHAA) and the 

Americans with Disabilities Act (ADA) and seekitig declaratory and injunctive relief. 

While the case was pending, the West Virginia legislature eliminated the "selfpreservation" requirement, and the district court granted the West Virginia HHS's motion 

to dismiss Buckhannon's lawsuit as moot. 

Subsequently, Buckhannon sought reimbursement of its attorney's fees and 

expenses under the FHAA's and ADA's fee-shifting provisions. The Supreme Court 

held that the term "prevailing party" is a term of art, and that it applies to a party which 

has been awarded some material relief by a court on the merits of at least some of its 

claims. Buckhannon, 532 U.S. at 603. The Court explained that "enforceable judgments 

on the merits and court-ordered consent decrees create the 'material alteration of the legal 
relationship of the parties' necessary to permit an award of attorney fees." Id. at 604. 

The Court rejected the "catalyst theory," under which a plaintiff is the "prevailing party" 

if it achieved what it sought in the lawsuit simply because the defendant voluntarily 

changed its conduct when faced with a lawsuit. The Court stated that "a defendant's 

voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to 

achieve by the lawsuit, lacks the necessary judicial imprimatur on the change." Id. at 

605. Based upon this reasoning, the Supreme Court affirmed the judgment of the court of 

appeals that Buckhannon was not the prevailing party. 

The courts have held that the Buckhannon standard for prevailing party status 

applies broadly to other federal fee-shifting statutes using the term "prevailing party." 

E.g. Aronov, 562 F.3d at 88-89. The courts have applied the Buckhannon standard when 

determining whether a party was a prevailing party imder the portion of the EAJA, 

codified at 28 U.S.C. § 2412(d)(1)(A), permitting an award of attorneys fees and 

expenses incurred by a prevailing party other than the United States in a civil action 

brought by or against the United States.'^ E.g., Ma v. Chertoff, 547 F.3d 342 (2d Cir. 

2008); Biodiversity Conservation Alliance v. Stem, 519 F.3d 1226 (10*^ Cir. 2008); 

Carbonell v. Immigration and Naturalization Service, 429 F.3d 894, 897-898 (9* Cir. 

2005); Thomas v. National Science Foundation, 330 F.3d 486 (D.C. Cir. 2003). 

Likewise, Buckhannon was applied in a recent case involving the similar EAJA provision 

codified at 5 U.S.C. § 504 - the EAJA provision involved in this case - permitting an 

'^ "Except as otherwise specifically provided by statute, a court shall award to a 

prevailing party other than the United States fees and other expenses ... incurred by that party in 

any civil action ... brought by or against the United States ... unless the court finds that the 

position of the United States was substantially justified or that special circumstances make an 

award unjust." 28 U.S.C. § 2412(d)(1)(A). 

10 
adjudicative officer to award attorney's fees and expenses incurred in connection with an 

agency adversary adjudication. Turner v. NTSB, 608 F.3d 12 (D.C. Cir. 2010.) 

The Buckhannon standard has been "distilled" by the United States Court of 

Appeals for the District of Columbia Circuit as follows: 

(1) there must be a court-ordered change in the legal relationship of the parties; 

(2) the judgment must be in favor of the party seeking fees; and 

(3) judicial relief must accompany the judicial pronouncement. 

Turner, 608 F.3d at 15 (citing District of Columbia v. Strauss, 590 F.3d 898, 901 (D.C. 

Cir. 2010); Thomas, 330 F.3d at 493. The first and third steps "combine to require the 

movant to demonstrate the existence of some form of court-ordered judicial relief that 

results in a change in the legal relationship of the parties." Poett v. United States, 

742 F.Supp. 2d 113,116 (D.D.C. 2010). 

Courts have applied Buckhannon in cases in which the party seeking fees was the 

defendant in the underlying litigation. For example, in Mr. L. v. Sloan, it was explained 

that "the rule of Buckhannon applies at the first step of the analysis, regardless of whether 

the party seeking fees is a plaintiff or defendant." 449 F.3d 405,407 (2d Cir. 2006). The 

court explained, "[a]s applied to prevailing-defendant cases, Buckhannon requires only 

that the judgment or consent decree be entered in the defendant's favor, not that the 

defendant be accorded some 'relief it had sought." Id. at 407, n.l. 

Similarly, in Turner v. NTSB, a court applied Buckhannon to determine whether 

the respondents - two pilots whose airman certificates had been suspended by the FAA -

were prevailing parties for EAJA purposes. In that case, the FAA withdrew the orders of 

11 
suspension which it had filed as the complaints,'' and the National Transportation Safety 

Board (NTSB) ALJ dismissed the cases. On petition for review of the NTSB's decision 

rejecting the pilots' EAJA application, the court held that the pilots were not prevailing 

parties because the ALJ's order dismissing the case was without prejudice and, 

consequently, did not provide administrative relief The court explained that "the order 

of the ALJ dismissing the cases was just an administrative housekeeping measure, not a 

form of relief, because the FAA did not need the ALJ's permission to withdraw a 

complainf' under the applicable NTSB procedural rule.'' Turner, 608 F.3d at 16. 

In light of the foregoing discussion, therefore, it is appropriate to apply 

Buckhannon when determining whether a respondent'^ in a FAA civil penalty action was 

a prevailing party. Likewise, Buckhannon should be applied to determine whether, as in 

this case, the recipient of a NPCP, FNPCP or an OACP, is a prevailing party in a FAA 

civil penEilty action after the FAA withdraws these documents. 

Under Buckhannon, Western was not a prevailing party. First, the ALJ did not 

issue an order in Western's favor. On the contrary, the ALJ found that Westem's request 

for hearing was late-filed and, consequently, Western was not entitled to a hearing. 

Second, the Administrator's order finding that the case was moot and dismissing 

Westem's appeal was not a judicial pronouncement in Westem's favor. Western 

'* Under the NTSB's rules of practice, a certificate holder whose certificate is suspended 

by the FAA Administrator may file an appeal from the Administrator's order of suspension with 

the NTSB. 49 C.F.R. § 821.30(a). When the certificate holder files an appeal, the Administrator 

files the order of suspension as the complaint. 49 C.F.R. § 821.31(a). 

'^ "Except in the case of... a complaint..., pleadings may be withdrawn only upon 

approval of the law judge or the Board." 49 C.F.R. § 821.12(b). 

'^ The term "respondent" is defined in the FAA procedural rules as "a person, corporation 

or company named in a complaint." 14 C.F.R. § 13.202 ("Respondent ") 

12 
benefited from the agency attorney's unilateral withdrawal of the NPCP, FNPCP and 

OACP, but the Administrator's order in no way added to that benefit because it did not 

direct or require the FAA to take or refirain from any action. The Administrator's 

dismissal neither approved of the withdrawals nor protected Western against future 

enforcement action on the same allegations because the dismissal was not a decision on 

the merits regarding any alleged violations. Indeed, because a complaint was not filed, 

the agency attorney never presented any allegations of regulatory violations to the ALJ. 

The dismissal did not specify whether it was with or without prejudice, and as a result, it 

was without prejudice. See Turner, 608 F.3d at 15-16 (finding that the NTSB ALJ's 

dismissal of a complaint that was silent on the issue of prejudice constituted a dismissal 

without prejudice.) Hence, the Administrator's order dismissing the appeal as moot did 

not bring about a material change in the legal relationship between the FAA and Western. 

The Administrator's order dismissing Westem's appeal was no more than a housekeeping 

matter, because under 14 C.F.R. § 13.16, the agency attorney did not need permission to 

withdraw the NPCP, FNPCP or the OACP. Thus, any relief that Westem received lacked 

administrative imprimatur. 

Westem argues that the Administrator's decision in KDS Aviation Corp., 

FAA Order No. 1991-52 (October 28, 1991) supports its argument that it is a prevailing 

party. In that case, the Administrator held that the EAJA applicant was a prevailing party 

when the FAA withdrew the NPCP and the complaint, and the ALJ dismissed the case. 

The Administrator pointed to 14 C.F.R. § 14.20(c)(4) (now 14 C.F.R. § 14.20(c)(5)), 

which provided that a final disposition [30 days fi"om which an EAJA application is due] 

includes a final order or any other final resolution of a proceeding, such as a settlement or 

13 
voluntary dismissal, which is not subject to a petition for reconsideration. Id. at 5. The 

Administrator concluded firom the inclusion of "voluntary dismissal" in the definition of 

"final disposition" that the agency's EAJA rules contemplated that the FAA's voluntary 

withdrawal of a complaint could serve as the basis for an EAJA claim. Id. 

Westem's reliance upon KDS Aviation Corp. is misplaced. KDS Aviation Corp. 

involved the withdrawal of a complaint, while in the case at bar, the agency attorney 

never filed a complaint. Also, as the Administrator noted in Green Aviation Management 

Co., "[i]n light of Buckhannon's requirement for a judicially sanctioned order causing a 

material alteration in the legal relationship of the parties ... it appears that the principles 

announced in KDS Aviation Corp. should be reconsidered." FAA Order No. 2010-4 at 4 

(June 14, 2010). Further, the court in Cadkin v. Loose, 569 F.3d 1142 (9* Cir. 2009) 

overturned the case on which the Administrator relied in KDS Aviation Corp., Corcoran 

V. Columbia Broadcasting System, Inc., 121 F.2d 575 (9'*' Cir. 1941)," to the extent that it 

was contrary to Buckhannon. 

The ALJ held that he was required to conclude that Westem was not the 

prevailing party because the record contained no evidence regarding the reason behind 

the FAA's withdrawal of its allegations against Westem. (EAJA Initial Decision at 3.) 

In Buckhannon, the Supreme Court rejected a definition of prevailing party that might 

require courts to analyze "a defendant's subjective motivations in changing its conduct." 

Buckhannon, 532 U.S. at 609. Accordingly, while affirming the ALJ's fiinding that 

" In Corcoran, the court held that the defendants were prevailing parties after the 

plaintiff moved voluntarily for dismissal of its complaint and the judge issued an order dismissing 

the case without prejudice. Corcoran, 121 F.2d at 576. 

14 
Westem was not a prevailing party, the Administrator does not aidopt this aspect of the 

ALJ's decision.^" 

rV. Conclusion 

For the reasons discussed above, Westem's appeal is denied.^' 

' J. RANDOLPH BABBITT 

ADMINISTRATOR 

Federal Aviation Administration 

^° In light of the Administrator's rejection of Westem's adversary adjudication and 

prevailing party arguments, it is not necessary for the Administrator to decide Westem's 

remaining argument regarding whether the EAJA permits an award for the services of an agent. 

^' Within 30 days of this determination, Westem may file an appeal with an appropriate 

United States court of appeals. 5 U.S.C. § 504(c)(2); 14 C.F.R. 14.29. See 49 U.S.C. § 46110 

and 14 C.F.R. §§ 13.235(a)-(c) (regarding petitions for review of orders issued by the 

Administrator.) 

15 
SERVED JUNE 19,2009 

U.S. DEPARTMENT OF TRANSPORTATION DE;PT OF TRWORTATION 

OFFICE OF HEARINGS DOCKETS 

WASHINGTON, D.C. 

IN TTIE MATTER OF 

WESTERN AIR EXPRESS, INC. 

For fees and expenses under the 

Equal Access to Justice Act 

. .EAJA-130023 

FAA DOCKET NO. CP09SW0003 

DMS NO. FAA-2009-0280 

ADMINISTRATIVE LAW JUDGE'S INTriAL DECISION 

DENYING APPLICATION FOR FEES AND EXPENSES 

UNDER THE EQUAL ACCESS TO JUSTICE ACT 

In a Notice of Proposed Civil Penalty issued on May 28, 2008, 

Westem Air Express, Inc. (Westem or Applicant) was charged by the 

Federal Aviation Administration (FAA) with operating an aircraft on 66 

revenue flights with an engine that was beyond its overhaul requirements, in 

violation of § 119.5(1) of the Federal Aviation Regulations (FAR), 14 C.F.R 

§ 119.5(1). On September 4,2008, Westem attempted to challenge this 

charge by requesting a formal hearing. The FAA moved to dismiss the 

request for a hearing as untimely and, in an order served on December 1, 

2008,1 granted the FAA's motion. Westem Air Express. Inc.. FAA Docket 

No. CP08SW0007, DMS No. FAA-2008-1050, Order Grant'g Mot to 

Dismiss Req. for Hr'g at 4 (Dec. 1, 2008). Westem appealed my order. 

While the appeal was pending, the FAA withdrew its claim against Westem, 

and the Administrator dismissed the appeal as moot. Westem Air Express. 

Inc.. FAA Order No. 2009-5, Order Dismiss'g Appeal at 2 (Mar. 12, 2009) 

(Osmtjs, Act'g Adm'r).' 

' This order, along with other materials relating to civil penalty cases, is available on the Internet at 

http://fea.gov/about/ofBcc_org/headquarters_ofFices/agc/pol_adjudication/AGC400/Civil_Penalty/. 

•itt w 
On April 1,2009, Western filed.the instant application under the 

Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2006), seeking to 

recover fees and expenses allegedly incurred in its effort to challenge the 

FAA's assessment. The FAA on May 1, 2009 filed an answer to the 

application, opposing it in its entirety. 

The EAJA entitles a "prevailing party" (other than the United States) 

in an "adversary adjudication" conducted by the federal agency to recover 

fees and other ejqjenses incurred by that party unless the "adjudicative 

ofBcer" of the agency who conducted the adjudication finds that the position 

of the agency was "substantially justified" or that special circumstances 

make an award unjust. 5 JJ.S.C. § 504(a)(1), (b)(1)(D). To be eligible for an 

award, a for-profit corporation, such as Westem, must had had a net worth 

of $7 million or less and 500 or fewer employees at the time the government 

initiated the adjudicative proceeding. 5 U.S.C. § 504(b)(1)(B) 

I hold that, for several reasons, Westem does not qualify for an award 

under the EAJA. 

. First. The Applicant was not a party to an "adversary adjudication." 

Under the FAA regulations that implement the EAJA, 14 C.F.R Part 14 

(2008), an applicant is entitled to reimbursement only of expenses incurred 

for "work performed after the issuance of a complaint." 14 C.F.R. 

§ 14.05(e). In this case, rib complaint was ever issued. In Ernest Wilson. 

Docket Nos. CP89SW0166 & EAJA90SW0001, FAA Order No. 90-0017, 

Decision and Order at 3 (Apt: 9, 1990) (Busey, Adm'r), the Administrator 

rejected an applicant's request for reimbursement of attorney's fees under 

the EAJA, observing that a "complaint.. .begins the adversary 

adjudication." Under the FAA's Rules of Practice, a complaint is filed only 

after the Respondent makes a timely request for a hearing. 14 C.F.R. 

§ 13.16(g)(2)(ii). In this case, I ruled that such a request had not been made. 

Hence, no complaint was filed, and there never was an adversary 

adjudication to which the Applicant could be a party. The EAJA simply 

does not provide for relief on accoimt of every squabble between a member 

of the aviation commtmity and the FAA. 

Second. The Applicant was riot the "prevailing party." Although 

Westem might qualify as a "party" under the definition found in the EAJA^ 

5 U.S.C. § 504(b)(1)(B)), the courts have held that an applicant cannot be 

regarded as a "prevailing party" unless it has succeeded on the merits of the 
case. Hanrahan v. Hampton. 446 U.S. 754, 758 (1980) (Fees may be 

awarded only when "a party has prevailed on the merits of at least some of 

his claims,"). In Buckhannon v. West Virginia Department of Health and 

Human Resources. 532 U.S. 598, 605 (2001), the Court held that a party was 

entitled to fee-shifting relief under .the Americans with Disabilities Act and 

the Fair Housing Amendments Act only if that party obtained a "judicial 

imprimatur^ that changed its relationship to the opposing party. Last year, 

the Second Circuit ruled that the Buckhannon definition of the term 

"prevailing party" applies to fee applications under the EAJA. Ma v. 

ChertofF. 547 F.3d 342,344 (2d Cir. 2008). Tlie 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 assimiption. The 

question it must answer is: Why was the claim withdrawn? The record of 

the underlying proceeding,.on which a decision tmder the EAJA must be 

based, 14 C.F.R, § 14.04(a), is silent on this point Absent such proof, I am 

required to conclude that the .ifVpplic.ant.does not qualify as a prevailing 

party. 

Third. The bulk of the funds Westem has requested relate to the time 

expended by its majority shareholder and.sole employee, James Nyerges. So 

far as the record shows, no one except Mr, Nyerges spoke for Westem in the 

underlying proceeding. Mr. Nyerges says in his application, that Westem 

has a net worth of zero and only one employee: himself; all of the assets 

used by Westem belong to him persona.lly. In these circumstances, Mr. 

Nyerges is, in substance, seeking reimbursement for the time and effort he 

expended as an employee of the Applicant. It is well-established that a pro 

se litigant is not permitted to recover attorney's fees under the EAJA for his 

efforts on behalf of himself; See SfeC v. Price Waterhouse. 41 F.3d 805, 808 

(2d Cir. 1994); Matter of Whittle. 5 N.T.S.B. 727,728 (1985). hi substance, 

Mr. Nyerges was conducting a prose defense on behalf of a corporation of 

which he is the alter ego. The amounts for which he now seeks 

"reimbursement" are largely ,!iis qv^n valuation of time he spent as a 

corporate employee. They are not the type of fees to attorneys and agents 

and similar litigation expe^nses for which Congress authorized 

reimbursement under the EAJA. 

For the foregoing rieasons, subject to review by the Administrator, as 

provided in 14 C.F.R. § 14.28, the Application is denied. 
&^ 

m S SO ORDERED. 

Isaac D. Benkin 

Admioistrative Law Judge \ 

[Note; Either party may seek review of this decision within 30 days after it is 

issued. 14 C.F.R. § 14.28(a). The Notice of Appeal must be filed not later than 1^ 

days after service of this decision (plus five additional days, if thu decision is served 

by mail). 14 C.F.R. §§ 13.233(a), 13.211(e). The appeal must be perfected with a 

written brief or memorandum not later than 30 days after service of this decision 

(plus five additional days, if this decision is served by mail). See 14 C.F.R. 

§§ 13.233(c), 13.211(e), 14.28(a). The Notice of Appeal and briefer memorandutn 

must be either (a) mailed to the Federal Aviation Administration, 800 Independence 

Avenue, S.W., Washington, D.C. 20591; Attention: Hearing Docket Clerk, AGC4 

430, Wilbur Wright BuOding—Suite 2W1000; or (b) delivered personally or via' 

expedited courier service to the Federal Aviation Administration, 600 Independence 

Ave., S.W., Wabur Wright BuUding—Suite 2W1000, Washington, D.C. 20591, \ 

Attention: Hearing Docket Clerk, AGC-430. 14 C.F.R. §§ 13.233(a), 13.210(a)(2), 

(1). A copy of the Notice of Appeal and brief should also be served on each partj^. 

14 C.F.R. § 13 J233(a). However, if neither party timely submits an application f<^r 

review and the Administrator does not decide to review it on his or her own motion, 

this decision shall become final 30 days after it is issued.]