United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 9, 2014 Decided January 23, 2015 

No. 14-1022 

JAMES L. ROBERTS, 

PETITIONER

v. 

NATIONAL TRANSPORTATION SAFETY BOARD AND FEDERAL 

AVIATION ADMINISTRATION, 

RESPONDENTS

On Petition for Review of an Order of 

 the National Transportation Safety Board 

Deanna L. Weidner argued the cause for petitioner. With 

her on the briefs was David B. Anderson. 

Sonia K. McNeil, Attorney, U.S. Department of Justice, 

argued the cause for respondents. With her on the brief were 

Stuart F. Delery, Assistant Attorney General at the time the 

brief was filed, and Michael J. Singer, Attorney. Michael E. 

Robinson, Trial Attorney, U.S. Department of Justice, and 

James A. Barry, Senior Attorney, Federal Aviation 

Administration, entered appearances. 

Before: WILKINS, Circuit Judge, and SENTELLE and 

RANDOLPH, Senior Circuit Judges. 
2 

Opinion for the Court filed by Circuit Judge WILKINS. 

 WILKINS, Circuit Judge: In 2009, the Administrator of 

the Federal Aviation Administration (FAA) suspended the 

license of Petitioner James L. Roberts, an airplane mechanic, 

for 120 days—and thereby also stripped him of his ability to 

earn a living practicing his craft. After roughly a year and a 

half of legal proceedings, the National Transportation Safety 

Board (NTSB), which hears appeals from FAA orders, 

vacated the suspension and found that the FAA’s position had 

been unreasonable and not substantially justified. Petitioner 

then sought recovery of legal fees and expenses under the 

Equal Access to Justice Act (EAJA), 5 U.S.C. § 504(a)(1), but 

the NTSB denied fee-shifting on the grounds that Petitioner 

failed to show that he had “incurred” the fees associated with 

his legal defense in the license suspension proceedings, as 

required for an EAJA recovery. Even though the NTSB 

ultimately rejected a finding that Petitioner’s employer had 

agreed to pay the fees and also recognized that Petitioner’s 

lawyers had not performed services pro bono, it still 

concluded that Petitioner had not proved that he had incurred 

the fees. 

The question before the Court is whether the NTSB’s 

conclusion was arbitrary and capricious. We hold that it was, 

and that the NTSB should have considered that under the 

Alabama law of quantum meruit, Petitioner was obligated to 

pay his attorneys for the value of their services; as such, 

Petitioner “incurred” fees and may obtain EAJA fee-shifting. 

We therefore grant the Petition, vacate the decision, and 

remand the case to the NTSB to determine the appropriate 

amount of fees and expenses to award. 

 
3 

I. 

At the time of the events in the underlying license 

suspension proceeding, Petitioner was Director of 

Maintenance for Alabama-based Darby Aviation (“Darby”). 

In re Roberts, NTSB Order No. EA-5696 (2014), 2014 WL 

581820, at *7 (“NTSB Fee Order”). In July 2009, the FAA 

ordered a 120-day suspension of Petitioner’s mechanic 

certification based on alleged regulatory violations including 

returning an aircraft to service when it was not in airworthy 

condition. See Administrator v. Roberts, NTSB Order No. 

EA-5556 (2010), 2010 WL 4253063, at *1. Petitioner 

contested the suspension before an NTSB Administrative Law 

Judge (ALJ) through four days of evidentiary hearings held in 

March and April 2010, after which the ALJ reduced 

Petitioner’s suspension to 60 days.1

 Id. Petitioner and the 

FAA cross-appealed to the Board, which reversed the 

suspension entirely on the ground that the FAA had failed to 

present sufficient evidence to support its factual predicates. 

Id. The FAA sought rehearing, which the Board denied in 

January 2011. See Administrator v. Roberts, NTSB Order 

No. EA-5568 (2011), 2011 WL 289248, at *3. Although he 

initially appeared pro se, Petitioner was represented by 

counsel in most of these proceedings. 

 

1

 “The Federal Aviation Act, 49 U.S.C. § 40101 et seq., establishes 

a split-enforcement regime in which the FAA has regulatory and 

enforcement authority, while the NTSB acts as an impartial 

adjudicator.” Garvey v. NTSB, 190 F.3d 571, 573 (D.C. Cir. 1999) 

(internal quotation marks omitted). Although the case is captioned 

with NTSB as first respondent, the real parties in interest are 

Petitioner Roberts and the FAA; the NTSB, as impartial 

adjudicator, has a function “roughly analogous to that of a district 

court.” Hinson v. NTSB, 57 F.3d 1144, 1147 n.1 (D.C. Cir. 1995). 
4 

On February 23, 2011, Petitioner filed an application 

under the EAJA seeking $66,693.27 in fees and expenses of 

the attorneys who represented him. The EAJA statute 

provides in relevant part: 

An agency that conducts an adversary 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 unjust. 

5 U.S.C. § 504(a)(1). 

In a written order on the fee application dated June 13, 

2011, an NTSB ALJ found that the FAA’s position “was not 

reasonable in law and fact, and was, thus, not substantially 

justified.” NTSB Fee Order, 2014 WL 581820, at * 18. But 

the ALJ also found that Petitioner had not incurred any 

expenses under the statute. Id. at *21. 

The ALJ agreed with the FAA that “the submission of a 

billing that was addressed by [Petitioner’s] counsel to Darby 

Aviation evidences that the attorney fees he seeks to recover 

were not actually incurred by him.” Id. at *19. In reply, 

Petitioner contended that it was immaterial that his counsel 

also represented Darby and that an invoice had been 

“inadvertently” sent to Darby. Id. Petitioner submitted an 

affidavit from one of his attorneys, Deanna L. Weidner of 

Anderson Weidner, LLC, attesting that Petitioner was “legally 

obligated to pay for the fees and expenses associated with this 

case” and had “agreed to pay any fee award” to the law firm. 

Id. A second affidavit, from Darby’s CFO, attested that 

Darby had “paid only a fraction” of Petitioner’s legal fees and 
5 

expenses and that Darby had “no express indemnity 

agreement” with Petitioner. Id. 

The ALJ also took issue with invoices submitted by 

Anderson Weidner for work done in 2009, noting “that 

applicant initially acted pro se in the underlying proceeding, 

and made submissions on his own behalf as late as November 

24, 2009, and that Ms. Weidner did not enter an appearance as 

applicant’s counsel in that matter until February 1, 2010.” Id. 

at 20. As a result, the ALJ held that Petitioner could not 

recover fees for any services Anderson Weidner rendered 

prior to February 1, 2010. Id. The ALJ further criticized time 

billed for line items “clearly unrelated” to Petitioner. Id. 

Given this, the ALJ found that “Darby Aviation was 

responsible to Anderson Weidner, LLC, for payment” of all 

legal fees and expenses in this case, and on that basis 

concluded that Petitioner “did not incur the fees and expenses 

for which he seeks reimbursement in this EAJA action.” Id.

at *21. 

Another ALJ heard and denied Petitioner’s 

reconsideration request in April 2012. Id. at *11. On further 

appeal, the Board rejected the ALJ’s conclusion that Darby 

had agreed to cover the costs of Petitioner’s representation,

but it nevertheless affirmed the denial of the application for 

fees and expenses, finding that the “record lacks clear 

evidence applicant personally ‘incurred’ fees for purposes of 

the statute.” Id. at *5. This timely Petition for review of the 

NTSB final order followed. See 5 U.S.C. § 504(c)(2). 

II. 

We review de novo the NTSB’s interpretation of the term 

“incurred” fees as it appears in the EAJA statute, 5 U.S.C. § 
6 

504(a)(1). Green Aviation Mgmt. Co. v. FAA, 676 F.3d 200, 

202 (D.C. Cir. 2012) (citing Turner v. NTSB, 608 F.3d 12, 14 

(D.C. Cir. 2010)). “[B]ecause the EAJA is a statute of 

general application, we do not defer to any one agency’s 

interpretation.” Turner, 608 F.3d at 14. We review the 

NTSB’s reasoning in its decision under the Administrative 

Procedure Act’s familiar arbitrary and capricious standard, 5 

U.S.C. § 706(2)(A), and the NTSB’s factual findings are 

binding on us so long as they are supported by “substantial 

evidence,” 49 U.S.C § 44709(f). See Singleton v. Babbitt, 588 

F.3d 1078, 1082 (D.C. Cir. 2009). 

 

A. 

“Neither EAJA nor the legislative history provides a 

definition of the word incur.” Ed A. Wilson, Inc. v. Gen. 

Servs. Admin., 126 F.3d 1406, 1408 (Fed. Cir. 1997) (quoting 

SEC v. Comserv Corp., 908 F.2d 1407, 1413 (8th Cir. 1990)) 

(internal quotation marks omitted). Both Petitioner and the 

FAA tell us we must determine what “incur” means in this 

context. 

The FAA urges us to apply a dictionary definition and 

commends us in particular to the current edition of Black’s 

Law Dictionary. See BLACK’S LAW DICTIONARY 836 (9th ed. 

2009) (to “incur” is “[t]o suffer or bring on oneself (a liability 

or expense)”). The NTSB reasons from this definition in its 

opinion below and the FAA argues in its brief here that “an 

applicant who has no personal responsibility ever to pay legal 

fees and expenses has not ‘incurred’ fees and expenses and 

therefore is not eligible under § 504 for an award.” The FAA 

also contends that Petitioner “cites no authority for the 

proposition that the mere possibility of state law liability 

alters whether a party has ‘incurred’ fees within the meaning 

of EAJA.” 
7 

 But it is the FAA’s position—that the absence of a 

written agreement is dispositive in determining whether a 

party has “incurred” fees within the meaning of EAJA—that 

is without authoritative support. The edition of Black’s Law 

Dictionary that was current when Congress enacted the EAJA 

in 1980 defines “incur” to allow that a liability may be created 

other than by contract. BLACK’S LAW DICTIONARY 691 (5th 

ed. 1979) (stating that to “incur” is “[t]o have liabilities cast 

upon one by act or operation of law, as distinguished from 

contract, where the party acts affirmatively”). Petitioner 

argued to an ALJ and to the Board that his employers had not 

agreed to pay his legal fees and expenses and that he was 

personally “obligated to pay the attorneys who defended him 

in the enforcement action.” NTSB Fee Order, 2014 WL 

581820, at *3; see id. at *8. It was arbitrary and capricious 

for the NTSB to reject the possibility that a claim in quantum 

meruit creates a liability for the reasonable value of services 

rendered notwithstanding the lack of any valid contract. See

RICHARD A. LORD, 23 WILLISTON ON CONTRACTS § 62:7 (4th 

ed. 2010) (“[W]here there is no express contract, a party’s 

acceptance of, or acquiescence in, the services rendered by an 

attorney will raise an implied promise to pay for the services, 

unless the circumstances show that the services were intended 

to be gratuitous.”). 

The NTSB was required to look to Alabama law because 

it was the natural source of authority for Petitioner’s claim 

that he was obligated to pay his attorneys even absent a 

written contract. See RESTATEMENT (THIRD) OF RESTITUTION 

AND UNJUST ENRICHMENT § 1 cmt. a (2011) (describing 

unjust enrichment as an independent basis of liability in 

common-law legal systems); see, e.g., Glick v. U.S. Civil 

Serv. Comm’n, 567 F. Supp. 1483, 1489 (N.D. Ill. 1983) 

(finding in collateral dispute to EAJA fee award that, without 
8 

a contract, state law of quantum meruit entitles an attorney to 

the reasonable value of services rendered to the client). And, 

as it happens, Alabama law provides that Petitioner was 

legally responsible for paying his attorneys under the theory 

of quantum meruit. See, e.g., Jacks v. Sullinger, 224 So. 2d 

583, 585 (Ala. 1969) (“[T]he law implies a promise to pay a 

fair and reasonable compensation for services rendered to 

another which are knowingly accepted.”). In a case involving 

a claim for recompense by private counsel retained by the 

State’s Governor, the Supreme Court of Alabama held that the 

attorneys were entitled “to a reasonable fee” for their work, 

even where there was no valid contract for the work 

performed because the retainer agreement was void ab initio. 

State v. Am. Tobacco Co., 772 So. 2d 417, 422-23 (Ala. 

2000). Indeed, the availability of quantum meruit recovery by 

attorneys in Alabama appears “well established.” See Triplett 

v. Elliott, 590 So. 2d 908, 910 (Ala. 1991); see also Lewis v. 

Haskell Slaughter Young & Rediker, LLC, 582 Fed. Appx. 

810, 814 (11th Cir. 2014) (affirming fee award based on 

quantum meruit theory in Alabama law).

Against this argument the FAA musters before this Court 

Tyson & Arrington v. Thompson, a century-old case that it 

submits for the proposition that a contract “may be implied 

only when an attorney demonstrates a reasonable expectation 

of being paid by the person whom counsel seeks to hold 

liable.” 70 So. 649, 651 (Ala. 1915). But Tyson & Arrington

does not do the work needed to justify the NTSB’s 

reasoning—it stands merely for the proposition that the 

provider of officious or gratuitous services may not recover in 

quantum meruit. See id. In other words, Alabama law 

implies a promise to pay compensation for services rendered 

to another that are knowingly accepted except that “one may 

not recover for services gratuitously rendered to another with 

no expectation of payment.” Jacks, 224 So. 2d at 584. No 
9 

one argues here that Petitioner’s attorneys provided their 

services gratuitously.2

The NTSB did not perform any of this analysis. Instead, 

the Board reasoned that even though it could not conclude 

that Darby had agreed to pay Petitioner’s attorneys, and even 

though the attorneys gave deposition testimony that they were 

not working pro bono, Petitioner had not proven that he was 

responsible for paying the fees because the invoices did not 

clearly say so. This defies logic. Cf. Vance v. Heckler, 757 

F.2d 1324, 1327-28 (D.C. Cir. 1985) (administrative decision 

refusing to credit “process of elimination” was unsupported 

by substantial evidence). And it ignores the quantum meruit 

obligation, as described above. The Board treated the lack of 

an express contract as dispositive, but it erred in doing so. 

The NTSB decision denying fees was therefore arbitrary 

and capricious because it failed to consider state law that was 

essential to its determination of whether Petitioner had 

incurred fees under the EAJA. 

B. 

 Although we hold that the NTSB acted arbitrarily and 

capriciously in declining to consider state law showing 

Petitioner had incurred fees for his legal representation—and 

 

2

 Had such an argument been made, Petitioner would not have a 

quantum meruit obligation to his attorneys but would be entitled to 

recovery for a different reason in that the EAJA allows recovery for 

pro bono representation. See Am. Ass’n of Retired Persons v. 

EEOC, 873 F.2d 402, 406 (D.C. Cir. 1989) (holding that feeseekers could gain reimbursement pursuant to the EAJA for their 

pro bono counsel). The Board expressly recognized this point. See 

NTSB Fee Order, 2014 WL 581820, at *4 n.33. 
10 

based on that law, we hold that Petitioner did incur fees 

entitling him to fee-shifting—we emphasize several issues we 

do not decide and that we leave open on remand to the NTSB. 

 First, not all of the fees and expenses submitted in this 

case are necessarily eligible for reimbursement. An NTSB 

ALJ noted that some of Anderson Weidner’s charges were for 

work done before it became counsel of record for Petitioner. 

NTSB Fee Order, 2014 WL 581820, at *20. Other itemized 

billings appear to have been for unrelated work performed for 

Darby, such as “issues on sale of business.” Id. We do not 

mean to say that fees for these services have been “incurred” 

by Petitioner. 

 Second, we do not foreclose an exploration by the NTSB 

on remand of whether “inadequate documentation, failure to 

justify the number of hours sought, inconsistencies, and 

improper billing entries” should reduce the reimbursement 

allowed in this case. Role Models America, Inc. v. Brownlee, 

353 F.3d 962, 973 (D.C. Cir. 2004). Even though the 

documentation deficiencies cannot preempt the state law that 

shows Petitioner has “incurred” fees, those deficiencies may 

factor into the question of how much reimbursement is due. 

See, e.g., Allen v. NTSB, 160 F.3d 431 (8th Cir. 1988) (per 

curiam) (holding that reduced award was appropriate due to 

failures of documentary evidence). On remand, the NTSB 

may consider which submitted fees and expenses were 

supported by sufficient documentation and whether a 

reduction in award is appropriate in these circumstances. 

 
11 

III. 

For the reasons stated in this opinion, the NTSB’s 

conclusion that Petitioner did not “incur” legal fees and 

expenses within the meaning of 5 U.S.C. § 504(a)(1) was 

arbitrary and capricious. Accordingly, we vacate the NTSB’s 

decision and remand the case for determination of the 

appropriate award under that statute. 

So ordered.