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SERVED: MARCH 5, 2012 "OCKET OPEil^AIIOMS 

^0!? KAR "b P {•• 33 

UNITED STATES DFiPARTMlINT OP TRANSPORTATION 

OFFICE 01-HBARINGS 

WASHINGTON, D C 

Application of 

RECURRENT TRAINING CENTER, INC. 

FAA DOCKET NO, CPIOGLOOIO, successor lo CP09GL0008 

DMSNo. FAA-2O10--0973, successor to [••AA-2009-0971 

(Equal Access to Justice Action) 

INITIAL DECISION 

FOLLOWING REMAND 

ON APPLICATION FOR ATTORNEY'S FEES 

AND OTHER EXPENSES 

Found: 1) Applicant is entitled to an award of attorney's fees and other expenses 

totaling $16,826.83; and 

2) Applicant is not entitled to an award for agent fees. 

I. Background 

This matter began as an application by Recurrent Training Center, Inc. ("RTC" or 

"the Applicant") under the Equal Access to Justice Act, 5 U.S.C. 5504 ("EAJA"or"the 

Act") for attorney's fees and other expenses, in the underlying proceeding, the Federal 

Aviation-Administration ("FAA" or "the agency") had charged RTC, an Air Agency 

certificated for an approved Provisional Pilot School, with violations or55141.4J(b)(3), 

141.83(a)(1), and 61.57(d) ofthc Federal Aviation Regulations ("FARs"). The Initial 

Decision had found that the agency failed to prove the charges. Federal Aviation 

Admimstrationv. Recurrent TrainingCcma; Inc., FAA Docket No. CP09GL0008, Initial 

Decision of Administrative Law Judge Richard C. Goodwin, sensed August 11. 2010. 

RTC, now the Applicant, on September 10, 2010 filed the subject EAJA 

application ("EAJA Application"). It sought an award totaling $19,416.80 (EAJA 

Application, Exhibit C). The agency opposed it. The EAJA Application was denied. The 

Initial Decision ("I.D.") reasoned that the agency hadsu.stained its burden of showing 

that it was "substantially justified" in bringing and maintaining the underlying action. 

Therefore, it was determined, no award should be made (initial Decision Denying Application 

/orAttorfic>''5Fees and Ot/ierExpemes of Administrative Lawjudge Richard C. Goodwin, 

sen'ed lanuar^' 3, 2011). 
By brief of February 21, 2011, RTC appealed ("Appellants BrieP). The FAA's 

response announced a change in position. The agency stated that it "now has 

determined that it was not substantially justified" in the proceeding below. Therefore, it 

contijuied, "the issue is limited to the proper amount of legal lees and other expenses 

that may be awarded pursuant to the EAJA" (Complainant's Reply Brief, May 9,2011, p. 

4). The agency then proceeded to address the elements of RTC's Application. It took 

issue with certain of the Applicant's requests for fees and other expenses. It asked that 

the Administrator resolve the issues. 

The Administrator on November 22, 2011 dismissed RTC's appeal and remanded 

the matter "for further proceedings as necessary to resolve the remaining issues regarding 

the proper award under the EAJA"' 

The undersigned's Order on Remand, served December 9, 2011, set out a schedule 

of briefs. In response, Applicant on Januar)' 9, 2012 filed a "Brief in Support of Proper 

Fees" ("Applicant's Brief"). It seeks attorney's fees totaling $20,980.00; "research fees" 

for John Killeen, RTC's President and owner, totaling $8,078.00; and total expenses of 

$174.26. The total reimbursement sought is $29,232.26 (Exhibit A to Applicant's Brief). 

The agency responded on Januar)' 30, 2012, urging that Applicant be awarded no more 

than $11,579.96 ("Agency's Brief"). This brings us up to date. 

II. Elements of an Award 

A. Conclusion 

1. The Statute and Regulations 

EAJA permits the award of "fees and other expenses" to the prevailing pariy 

(other than the LInited States) in an adversary' adjudication unless the position of the 

agency was ''substantially justified" or "special circumstances" make an award unjust. 5 

U.S.C. 5504; 14 C.F.R. 514.01 etscq. As we have seen, the parties do not novv dispute that 

RTC qualifies for an award.. It is the nature and amount of the award - the "fees and 

other expenses" - that is contested. 

The Act requires "fees and other expenses" to be "reasonable." "Fees" are defined 

to include "attorney or agent fees." The Act additionally limits the award of such fees to 

$125 per hour, unless an agency determines by regulation that "an increase in the cost of 

living or a special factor, such as the limited availability of quaUfied attorneys or agents 

for the proceedings involved, justifies a higher fee." 5 U.S.C. 6504(b)(1)(A); see also 14 

C.F.R. 514.05(b). 

' Order Oismissit^^ Appeal and Remanding Mailer lo Adniini.siraiive Lcnv Judge. FAA Order No. 2011-12, 

p. 2. Order No. 2011-12 also stated that no need existed lo rule on RTC's petition of June 8, 2011 for leave 

to file an additional brief in light ofthe agency's change of position, which petition had been opposed by 

the agency. 
2. Summary of Parties'Arguments 

The Apphcant argues that it qualifies for an award based on a rate of $200 per 

hour for its attorney and $102 per hour for Mr. John M. Killeen, RTC's President and 

owner. The latter the Applicant asserts is an "agent" under the Act. See EAJA 

Application, September 10, 2010; Applicant's Brief, January' 9, 2012. RTC ba.ses its 

request for an award of attorney's fees beyond the statutory' unit cap of $125 per hour on 

three grounds: 1) the "special factor" exception; 2) standards of "reasonableness" set out 

in the agency's implementing regulations; and 3) an increase in the cost of living. 

The agency opposes fee enhancement based on the rationales of special factors 

and reasonableness. It supports a cost-of-living enhancement. The FAA also opposes 

any award to Applicant's purported agent, Mr. Killeen. 

3. Ruling 

I find that the cost-of-living tactor justifies an award of attorney's fees at an 

hourly rate greater than the statucor)' cap - specifically, a rate of $175.66. I further find 

that no other factor may be applied to enhance the rate. Finally, 1 will deny Applicant's 

request for reimbursement on behalf of Mr. John Killeen as Applicant's agent. 

The discussion now turns to the arguments concerning the particular 

components of an award. Each ruling is framed against a background that EAJA 

constitutes a waiver of sovereign immunity and, as such, must be construed "strictly in 

favorof the sovereign." Mflso/if^Mflstcr, Inc., v. Nc/son, 105 F.3d 708.712 (D.C. Cir. 1997); 

Fanning, i'hillipsandMolnarv. West, 160 F.3d 717,721 (Fed.Cir. 1998). 

B. Special.Factor 

The Applicant submits that it merits an award of attorney's fees at a rate of $200 

per hour under the "special factor" exception to the statutory cap. In support, it 

contends that its attorney has the "specialized skill[s] needful for the litigation" 

warranting application of the exception {citing Pierce v. Underwood, 4S7 U.S. 552. 572 

(1988)). RTC elaborates that counsel has 35 years of aviation training resulting in 

"thorough knowledge" of the FARs. Counsel also has taken various safety courses and 

holds an advanced aeronautical degree. RTC asserts additionally that the award sought 

is justified by the "complexity ofthe issue" (Applicant's Brief, p. 2). 

The agency demurs. It points out that the only "special factor" cited in the Act is 

"the limited availability of qualified attorneys or agents for the proceedings involved" 

(citing 5 U.S.C. §504(b)(l)(A)). Like the Applicant, the FAA turns to the Supreme 

Court's analysis in Pierce. It notes that the Court ruled that the quoted language refers to 

qualification in "some specialized sense." The holder must possess "some distinctive 

knowledge" or the "specialized skill" also cited by RTC. A distinctive and particular 

ability, such as expertise in patent law or knowledge of foreign law, could invoke the 

exception. But RTC cites only counsel's general competence and ability. These qualities 
'- even in an extraordinary degree — cannot be considered "special factor[s]," the FAA 

contends idling Pierce, 487 U.S., p. 572). Nor, the agency continues, niay the exception be 

summoned by particular competence in administrative proceedings. Neither is fee 

enhancement merited by the difficulty of the case or the result achieved (Reply Brief, 

May 9, 2011, pp. 5-10). 

I find that an award of attorney's.fees at a rate higher than the statutory' imit cap 

based on the "special factor" exception is not warranted in this case. 

Applicant's reasons for an enhanced award involve the difficulty ofthe issues and 

the ability of counsel. These are matters of broad and general application. They are not 

sufficiently particular or distinctive to invoke the exception. Pierce v. Unda^\'ood,4S7 U.S. 

552, 572 (1988). Nor are complexity of the matter and competence of counsel generally 

factors meriting an award enhancement. Sec, e.g., Forshee v. Waterloo indiisirics. Inc., 178 F.3d 

527 (8 Cir. 1999). The complexity of this case does not remove it from the general rule. 

The issues involved are not beyond the grasp of a competent lawyer. To hold, moreover, 

that the matter's difficulty requires application of the exception would permit the 

exception to swallow the rule (Pierce, 487 U.S., p. 573). The principle of the ravenous 

exception also pertains when considering whether counsel's specialized knowledge and 

expertise in aviation matters warrants enhancement. Many lawyers are specialists. "If 

being a speciahst is a sufficient ground for a fee award above the statutor)' presumptive 

ceiling," it has been noted, "the ceihng is a dead letter." Mathcws-Sheets v. Astrue, 653 F.3d 

560, 564 (7 Cir. 2011) (per Posner.J.). Counsel's application of certain distinctive 

knowledge or skills may in a proper proceeding warrant different treatment, but aviation 

law, I find, is not the type of identifiable specialty or singular proficiency which requires 

invocation of the exception. In re Scaled Case 00-5116,254 F.3d 233, 235-36 (O.C. Cir. 2001). 

C. Reasonableness 

RTC also argues for a fee enhancement for its attorney based on "reasonableness." 

In support, the Applicant states that the Department's regulations permit awards based 

on customar)' rates charged by attorneys in the community. RTC supplied affidavits 

supporting its proposed rate of $200 per hour on that basis (EAJA Application, p. 5; 

Applicant's Reply Brief,^ p. 5; Applicant's Brief, pp. 2-3; sec 514.05). The agency opposes a 

greater award. It argues that the statute does not permit it. The Act sets a ceiling of $125 

per hour. Fees awarded, it contends, inay exceed the ceiling only upon the finding of a 

"special factor" or a cost of living adjustment (Agency's Brief, p. 4). 

1 find for the agency on this issue. The statute is clear. It states, without further 

adornment, that attorney's fees are capped at $125 per hour unless an increase in the cost 

of living or a "special factor" warrants a higher fee. 5 U.S.C. 5504(b)(1)(A); see also 

^ This brief, filed on October 22, 2010, was submitted in response to the agency's opposition to RTC's 

Application. The agency's opposition, dated Octobers, 2010, is entitled in ftjil "Agency's Response to 

Application for an Award of Attorney's Fees and Other Expenses Pursuant to the Equal Access to Justice 

Act (EAJA)." 
514.05(b). II the prevailing market rate exceeds the statutory cap, the statutoiy cap 

controls. 

D. The.Agent_Questlon 

The Applicant's itemization includes claims for fees based on tasks undertaken 

by its President and owner,John M. Killeen. Mr. Killecn's proposed rate of 

reimbursement is $102 per hour. Killeen propcriy is considered an "agent" under EAJA, 

Applicant argues, and his work on the case thus qualifies for an award. 

Mr. Killeen is not an attorney. Neither is he the Applicant's "alter ego," Applicant 

states. Nor was Killecn's time spent on the matter, Applicant contends, in his capacity 

as RTC's chief Rather his time spent was "outside the scope" of his employment. The 

Applicant does not assert that Killecn's undertakings were performed pursuant to 

contract or other obligation. 

Mr. Killecn's rate of reimbursement is based on the rates of paralegals in the area. 

RTC, however, does not assert that Killeen is a paralegal in fact. RTC supports an award 

by contending that Mr. Killeen was valuable and vital to the preparation of its case. He 

rci^earched and analyzed regulations, publications, and similar matters under direction of 

counsel. Mr. Killecn's contribution, moreover, actually lowered the amount of 

Applicant's overall claim, the Applicant argues, because Mr. Killeen performed tasks 

which otherwise would have been "necessary" to perform by counsel - and wliich would 

have been performed at counsel's higher rate. EAJA Application, pp. 5-6; Applicant's 

Reply Brief, p. 6; Applicant's Brief, pp. 4-5. 

The FAA counters that the tasks performed by Mr. Killeen are not entitled to an 

award. He cannot be considered an agent under the Act. EAJA, the agency states, 

contemplates that agents are "specialized non-attorney practitioners who arc authorized 

to represent chcnts only with special permission of a given tribunal." They must be 

inclividuals who "normally suppl[y] the kind and quality of ser\'ices needed to prosecute 

a claim." Mr. Killecn's position and the tasks he performed may not be so categorized. 

He simply did not function as an agent, the FAA concludes. Complainant's Reply Brief, 

pp. 11-13, quoting Fanning, Phillips, andMolnarv. West, 160 F.3d 717,721-22 (Fed.Cir. 1998) and 

Lane v. Department of Agriculture, 294 F.3d 1001,1003 (8 Cir. 2002). 

The agency also contends that the Act precludes the award of both agent fees and 

attorney's fees. It points out that the statute refers to "reasonable attorney or agent fees" 

(emphasis supplied; 5 U.S.C. 5504(b)(1)(A)). This disjunctive language, the agency 

states, bars recovery of agent fees when attorney's fees are reimbursable. Complainant's 

Reply Brief, p. 12; Lane, p. 1003. 

I find that the FAA is correct. The Act's plain - and disjunctive - language simply 

docs not permit recover)' of both attorney and agent fees. Since RTC employed an 

attorney who is seeking, and qualifies for, an award, it may not also seek an award on 

behalf of a purported agent. That the Act's language is disjunctive also is consonant with 

its aims, The purpose of EAJA is to eliminate legal expenses as a barrier to challenging 
unreasonable government action. Community Hearing & Plumbing Co. v. Garrett, 2 F.3d 1143, 

1145 (Fed.Cir. 1993). To further this goal, it was contemplated that parties mounring 

such a challenge would be compensated for expenses stemming Irom the costs of 

representation. Lane v. Department of Agricukurc, 294 F.3d 1001,1003 (8 Cir. 2002). Since 

Mr. Killeen was not representing RTC in the underlying action, it does not advance the 

purpose ofthc Act, i conclude, to compensate him for his ser\'ices. It bears reminding 

that my determination also is reached against the background of the principle that 

waivers of sovereign iirununity must be strictly construed in favor of the government. Sec 

l.D.,p.3. 

Congress in enacting the law, moreover, understood that the term "agents" 

includes non-attorney specialists authorized to practice before a particular tribunal. Cook 

V. Brown, 68 F.3d 447, 451 (Fed.Cir. 1995). The term refers to those with the expertise to 

furnish "the kind and quality of services needed to prosecute a claim" {Fanning, Phillips and 

Molmrv. West, 160 F.3d 717,721 (Fed.Cir. 1998)). Mr. Killeen plainly does not fit this 

description, Nor, in providing considerable assistance to RTC's attorney, may he be 

transformed into a paralegal. He simply is not so qualified. Imprcsa Constmzioni Geom. 

Domenico Garufi v. U.S., 100 Fed.Cl. 750,768 (Ct.Cl. 2011). 

In view of the foregoing I conclude that Mr. Killecn's time is non-compensable. 

Applicant's claim of $8,078.00 for tasks he performed will not be allowed.' 

E. Cost.ofLivfng 

I conclude that the Applicant is entitled to an award enhanced by a demonstrated 

increase in the cost of living. 

Our inquiry into this question begins, as always, with the governing statute. The 

Act states initially that attorney's fees are limited to an hourly rate of $125. It goes on to 

authorize an enhancement based on a'cost-of-living increase (5 U.S.C. 5504(b)(l)(A)(ii); 

Agency's Brief, p. 4). The $125 per-hour rate, then, is a presumptive ceiling which may be 

overcome. Mc/(/jcu's-S/icct.s v. Astrue, 653 F.3d 560, 563 (7 Cir. 2011); sec also Amer.ican Wrecking 

Corporaiionv.Sccretaiy of Labor, 364 F.3d 321, 329-30 (D.C.Cir. 2004). 

The agency argues that while the regulation is silent on the matter, Federal courts 

in civil proceedings have found that a cost-of-living adjustment may be warranted based 

on the statute when "significant time" has passed since the year in which the statutory' 

cap was set. (That year was 1996). Complainant's Reply Brief, p. 15; 28 U.S.C. 52412. 

The Applicant, of course, supports a fee enhancement on a cost-of-living basis (see, e.g.. 

Applicant's Brief datedjanuar)' 9, 2012). I find the parties' arguments persuasive. 

" Mr. Killeen also is ineligible for an award because he was under no obligation to funiish assistance. 

Extending an award to a voluntary helper invites mischief: it "has the potential to open a Pandora's box of 

claims from litigants who assert a friend or family member was 'of great assistance' in the litigation but 

who, ultimately, had no obligation to assist. . . the potential for abuse if atlorney's-fees awards were lo be 

e.Nlended in such a manner is quite high." U.S. v. Clara. 579 F.3d 452,468 (5 Cir. 2009). 
The proponent of a rate enhancement on this basis has the burden of showing 

t:hat the cost ol living has increased from a point recognized as the base period. Cost-ofliving figures are found in the Dc|:)artmcnt of Labor's Consumer Price Index ("CPl"). The 

adjusted hourly rate is then calculated. Filiration Dc\'clopmcnt Co., LLC, v. U.S., 63 Fed.Cl. 

612,625(2005). 

III. Calculating the Award 

We now determine the proper Inputs for calculation of attorney's fees properly 

reimbursable lo Applicant under EAJA. 

A. Base_Fee 

Prior to examination of cost-of-living changes, if any, the base unit fee to which 

any multiplier will apply must be determined. In the instant matter any cost-of-living 

enhancement will be applied to the rate of $125 per hour. Applicant has shown through 

affidavits that the prevailing rate for lawyer's fees in the community in which coun.sel 

practices is greater than that figure. See EAJA Application, Exhibits D and E. 

Complainant docs not take issue with the information contained therein. Nor do 1 find 

any reason to question it. As such, 1 find that a base fee of $125 per hour is appropriate. 

B. The.Prop_er_Expens_e^Recoyery_ Period 

Applicant has submitted an itemized Usting of its action.s resulting in attorney's 

fees. It requests such fees beginning in October 2008. At that time, according to its 

request, coimsel undertook review of the FAA's Notice of Proposed Civil Penalty. See 

Applicant's Brief, Exhibit A. But reimbursement may not begin at that stage in the 

process. DOT regulations do not permit an award for work performed prior to the 

issuance ofthe Complaint. 14 C.F.R. 614.05(e); see a/so Wesfcni Air E.v/ifcs.s, FAA Order No. 

2011-7 (June 13, 2011), pp. 6-8; Ernest Wilson, FAA Order No. 1990-17 (April 9,1990), pp. 2-

3. f hercfore no attorney's fees may be reimbursed for work carried out prior to the date 

ofthe issuance of the Complaint, which is October 8. 2009.'' 

Complainant argues that no fees or expenses incurred after May 3, 2011 should be 

awarded because Applicant "unreasonably protracted" the proceeding. DOT regulations 

prohibit the award of fees and other expenses for any portion of a matter in which a 

party "unreasonably protract[s]" the proceedings. 14 C.F.R. 514.02. The basis for 

Complainant's assertion is that on the proposed cutoff date the agency determined that 

it was not substantially justified in the litigation and offered Applicant a settlement. 

''Applicant's initial request for reimbursement, contained in its EAJA Application of September 10, 2010, 

did begin itemization with the October 8. 2009 date ofthe issuance ofthe Complaint. Application, Exhibit 

C. But Applicant's updated, and current, reimbursement request without explanation also includes several 

items prior lo that date. The current request itemizes beginning October 22, 2008, and ends September 30, 

2009. The total fee award requested for pre-Coiiiplainv items is $2,020. See Applicant's Brief (served 

January 9. 2012), Exhibit A. (Additionally, the current request erroneously lists the dale ofthe Complaint 

as October 6. 2009; the original itemization shows the correct date, October 8). 
Agency's Brief, pp. 7-8. Complainant does not take issue with any other aspect of 

Applicant's itemization. 

1 decline to limit the Applicant's award on the basis stated. Complainant does 

not explain why the mere offer of settlement should foreclose reimbursement requests 

beyond the date of the offer. Nor does it suggest any other reason why Applicant's work 

or conduct after May 3, 2011 amounts to unrea.sonable protraction of tfiis proceeding, and 

I find none. Complainant's contention is rejected.^ 

Thus the expense recover)' period is found to begin on October 8, 2009, the date 

of the issuance of the Complaint, and end on January' 9, 2012, the date Applicant's Brief 

was served. The number of attorney hours in that period total 94.8.'' 

C. Cost_of_Llving_Adius_tnnent 

In computing the enhanced hourly rate through application of cost of living 

increases. Complainant urges that the formula referenced in National Transportation 

Safety Board ("NTSB") regulations be used. That formula divides the Consumer Price 

Index ("CPl") for the rime period during which the properly reimbursable attorney's fees 

were incurred by the base CPl. 

The determination in this case of both the appropriate base period and the period 

during which attorney's fees were incurred -th e denominator and numerator, 

respectively, in the equation - is not without differences of opinion. Complainant 

contends that the base period should be the year 1996. since the current statutory cap 

was set in that year. The average annual CPl for the year 1996 was 156.9. The agency 

further urges that the period during which fees were incurred should be detennined to 

be the first year the work was performed. The FAA would utilize that year as the base 

"for ease of calculation" (citingTchcmf;oi(v. Mwi^dsc)', 517 F.3d 506,512 (7 Cir. 2008)). In 

this proceeding the base year would be 2009. The average annual CPl lor the year 2009 

was 214.537.^ The result becomes the new, adjusted rate.^ 

I will adopt a somewhat different approach to the calculation of both-the base 

period and the period during which attorney's fees were incurred. 

*Other fee-shifting statutes expressly bar prevailing parties from recovering ailomey's fees following a 

written seulemenl offer, so long as certain other conditions are met. See. eg- the Individuals with 

Disabilities in Education Act ("IDEA"), 20 U.S.C. §1415(i)(3)(D);5i?ea/.vo./as7iHi/W. v. Lansing Public 

Schools. 161 F.Supp.2d 888(N.D.III. 2001). EAJA, however, contains no such provision, and no basis 

exists for implying or engrafting one. 

"^ The dates of Applicant's final two entries are stated as, respectively, January 7 and 9, 2010. This is an 

obvious typographical error; the dates should read January 7 and 9, 2012. 

^ The sources for these figures, and all subsequent figures, are the CPl indices. The U.S. Department of 

Labor, Bureau of Labor Statistics, publishes Ihc indices, by month and year, at 

ftp://flp.bls.gov/pub/special.requesls/cpi/cpiai.ixt. 

* 49 C.F.R: §826.6. The base rate used in the NTSB regulation actually is the original 1981 rate of S75 per 

hour. Since the statutory cap was increased fi^om $75 (o $125 effective March 1996, the I.D., as noted, 

instead uses $125 as the base unit rate. See Complainant's Reply Brief, pp. 15-16. 
1 find that the month of March 1996, the effective date of the amended statutory 

cap o\ $125 per hour, is a more exact and fairer baseline for calculating the cost of living 

adjustment ("COLA") than the year 1996. The CPl for March 1996 was 155.70. 1 am 

persuaded, further, that the COLA should be determined using the mid-point month of 

the period during which reimbursable scn'ices were performed, rather than the first year 

of those services. This calculation more accurately rcQccts the CPl during that period, 

and thus would result in a more equitable rate of reimbursement. It also is the method 

adopted by several Federal courts in fee-shifting proceedings.^ The mid-point of 

Applicant's reimbursable legal sendees occurred in November 2010. The CPl for that 

month was 218.803. 

The resultant COLA, I find, more accurately reflects cost of living changes 

between the two periods, k provides a more precise and fairer multiplier for fee 

enhancement purposes. 

• D- ThejCaJculatioji 

payment will be calculated and authorized using the "lodestar" approach. The 

lodestar approach ascertains the number of hours reasonably expended on the litigation 

and mulriplies the total by a reasonable hourly rate. Applegatcv. United States, 52 Fed.Cl. 

751,764 (2002). 1 have examined the items submitted by Applicant for the calculation of 

an award of attorney's fees, and, excluding the items previously discussed, 1 find both the 

work and the hours expended to be reasonable. 

The calculation of an award of attorney's fees and other expenses is as lollows: 

218.803 (the CPl at mid-point) divided by 155.70 (the CPl for March 1996) = 1.4052858. 

Applying the resultant COLA to the baseline hourly rate of $125 fields $175.66 (rounded 

off). This adjusted hourly rate is then multiphcd by the number of hours reasonably 

expended, which has been found to be 94.8. The result is $16,652.57. Add $174.26 in 

expenses that the Applicant spent for postage during the operative period (Applicant's 

Brief, Exhibit A), and the award to Apphcant totals $16,826.83. 

IV. Conclusion 

For the reasons stated, the Applicant is entitled to an award in the amount of 

$16,826.83 for attorney's fees and other expenses pursuant to the Equal Access to Justice 

' See. e.g.. Inipresa Consiruzioni Geom. Domenico Garufi v. U.S.. 100 Fed.Cl. 750. 777 (201 1); Elcyzyn v. 

Brown. 7 Vet.App. 170, 181 (1994) (in which the Court stated thai it "will permit-and encourage - the 

selection of a single mid-point date . . . [biased on this Court's five years of experience . . ."). in the 

Tchemkou case cited by Applicant for the proposition that ihc CPl may use the year in which the work had 

been first performed, it is noted that in that case, that method had been suggested by the applicant's counsel 

- thereby awarding counsel a lesser total fee in the subject years (2006 and 2007) than had the mid-point 

method been utilized. See ftp://ftp.bls.gov/pub/special.requesis/cpi/cpiai.lxt. 
10 

Act, 5 U.S.C. 5504, and implementing regulations 14 C.F.R. 514.01 ctscq-.^ 

SO ORDERED. 

f-d-Gr6tio3wr 

Administrative Law Judge 

Attachment - Service List 

'^ This decision becomes final 30 days after its issuance unless a party appeals or the FAA Decisionmaker 

takes review under his or her own initiative. 14 CFR § 14.28(a). The appeal must be either (a) mailed to the 

Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, D.C. 20591, Attention: 

Hearing Docket Clerk. AGC-430, Wilbur Wright Building-Suite 2W1000; or (b) delivered personally or 

via expedited courier service to the Federal Aviation Adminislration, 600 Independence Avenue, S.W.. 

Wilbur Wright Building - Suite 2 W1000, Washington. D.C. 20591. Attention: Hearing Docket Clerk. 

AGC-430. 
FAA Docket No. CPIOGLOOIO 

(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 

Charles R. Barnett, 111, AppUccuU \s Cowisel 

1664 Moorland Lane 

Crystal Lake, IL 60014-2985 

TEL: 815-356-8647 

FAX: 815-356-7042 

Briana Martino, Agency 'v Counsel 

Great Lakes Region, AGL-7M 

Federal Aviation Administration 

2300 East Devon Avenue . 

Des Plaincs, IL 60018-4696 

TEL: 847-294-7313 

FAX: 847-294-7498 

The Honorable Richard C Goodwin, Ac/niinixfralive Law Judge 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

Wiishington, DC 20590 '• 

TEL: 202-366-2139 Attorney-Advisor 

I 202-366-5121 Stafl'Assistant/Paralegal 

FAX". 202-366-7536 

^ Scr\'ice was by U.S. Mail. For sen ice in person or by expedited couner, use the following address: 

Federal Aviation AdniinisUalion, 600 Independence Avenue, S.W., Wilbur Wright Building - Siule 2W1000. 

Washington. DC 20591, Auention: Hearing Docket Clerk, AGC-430.