Mendenhall v. National Transp. Safety Bd.
| Citation | 92 F.3d 871 |
| Decision Date | 08 August 1996 |
| Docket Number | No. 94-70320,94-70320 |
| Parties | 45 Fed. R. Evid. Serv. 393, 96 Cal. Daily Op. Serv. 5889, 96 Daily Journal D.A.R. 9686 Bonnie Lee MENDENHALL, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD; Federal Aviation Administration, Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Joseph D. Kuchta, Kuchta & Brinker, Washington, D.C., for petitioner.
Wilton J. Smith, Federal Aviation Administration, Washington, D.C., for respondents.
Petition to Review a Decision of the National Transportation Safety Board.
Before REINHARDT, THOMPSON, and O'SCANNLAIN, Circuit Judges.
We must decide whether the Federal Aviation Administration was substantially justified in filing a complaint before the National Transportation Safety Board against a commercial pilot who had successfully passed a reexamination.
Bonnie Lee Mendenhall is a commercial pilot. After failing numerous practical tests between September 1988 and November 1991, including reexaminations of her Airline Transport Pilot ("ATP") status, she was notified that the Federal Aviation Administration ("FAA") intended to reexamine her instrument rating.
On March 6, 1992, during a reexamination check in an aircraft simulator, FAA Aviation Safety Inspector Ray Evans spotted three maneuvers in Mendenhall's performance that were below standard, prompting him to recommend that she "arrange ... for some additional training and schedule another reexamination check." Ten days later, Flight Standards District Office ("FSDO") Manager Al Toll wrote to Mendenhall, notifying her of the deficiencies in her performance and asking that she "voluntarily surrender" her flight instructor certificate and the instrument rating portion of her commercial pilot certificate.
On April 13, 1992, Mendenhall met with personnel at Long Beach FSDO and explained that, at considerable personal expense, she had obtained the additional training recommended by Inspector Evans. She also attempted to schedule a reexamination, requesting an ATP and type rating check in a CE-500 aircraft, administered by an examiner from another FSDO. Mendenhall was advised that the FAA would review her training records and notify her of its decision. By letter of April 21, 1992, the FAA declined Mendenhall's plea for a reexamination, citing safety concerns, and reiterated its request for a surrender of her instrument rating and flight instructor certificate.
On May 16, 1992, Mendenhall traveled to Riverside, California and passed a practical examination for an ATP certificate in a CE-500. FAA-designated examiner, Sam Stewart, issued her a temporary ATP certificate for the CE-500. Five days later, the Administrator of the FAA issued an emergency order of revocation against her previously issued flight instructor certificate and the instrument rating portion of her commercial pilot certificate. At that time, the Administrator was unaware of Mendenhall's recent success in obtaining ATP certification. 1
On May 23, 1992, Mendenhall filed an appeal from the Administrator's order and surrendered her temporary ATP certificate. Her attorney contacted FAA counsel, informed him of Mendenhall's compliance with FAA recommendations, and requested that the matter be dismissed, which FAA counsel declined to do. On May 28, 1992, after receiving Mendenhall's notice of appeal as well as her surrendered ATP certificate, 2 FAA counsel filed the emergency order of revocation as a complaint before the National Transportation Safety Board ("Board").
Mendenhall's answer to the emergency order did not specifically mention the May 16 examination or its results. However, it did state that she had complied with the FAA's recommendations to receive additional training and to schedule a reexamination.
On June 5, 1992, the FAA's counsel telephoned Mendenhall's attorney and acknowledged that Mendenhall was qualified to hold an ATP certificate. However, instead of simply dismissing the complaint and returning Mendenhall's certificate, the FAA lawyer attempted to "plea bargain," notifying Mendenhall's attorney that the FAA would dismiss the complaint if Mendenhall would waive reimbursement for attorneys' fees under the Equal Access to Justice Act ("EAJA"), 5 U.S.C. § 504 et seq. Mendenhall declined to do so because she had already incurred substantial expenses.
On June 8, 1992, FAA counsel moved to withdraw the emergency order which the Administrator did the same day. The administrative law judge ("ALJ") thereafter discontinued the proceeding.
Mendenhall served her EAJA application on July 7, 1992 which the Administrator timely answered. In due course, the ALJ denied the Application and the NTSB affirmed, holding that the Administrator was substantially justified in pursuing the case.
The Court of Appeals reviews the NTSB order in accordance with the Administrative Procedure Act. 5 U.S.C. 701-706 (1994); Howard v. FAA, 17 F.3d 1213, 1215 (9th Cir.1994). The standard of review of the NTSB's determination that the FAA's position was substantially justified is abuse of discretion. Williams v. Bowen, 966 F.2d 1259, 1260 (9th Cir.1991). There is an abuse of discretion when an agency's decision is based on an erroneous conclusion of law or when the record contains no evidence on which it could have rationally based that decision. Bay Area Peace Navy v. United States, 914 F.2d 1224, 1230 (9th Cir.1990). A finding that an agency's position was substantially justified when the agency's position was based on violations of the Constitution, federal statute or the agency's own regulations, constitutes an abuse of discretion. Yang v. Shalala, 22 F.3d 213, 217-18 (9th Cir.1994).
Mendenhall contends that the NTSB erred in affirming the ALJ's denial of petitioner's request for fees and costs because the Administrator of the FAA was not substantially justified in initiating and pursuing the enforcement action against her. Mendenhall argues that her compliance with all FAA recommendations estopped the agency from bringing the underlying revocation action. She also contends that the FAA's filing of a complaint with the NTSB alleging her lack of qualification, despite constructive and actual knowledge of her qualification, violated the agency's own policy.
A prevailing party is entitled to an award of attorneys' fees unless 5 U.S.C. § 504(a)(1) (1988).
The burden is on the agency to prove that its position was substantially justified. United States v. $12,248 U.S. Currency, 957 F.2d 1513 (9th Cir.1991). To meet this burden, the agency must prove that its position had a reasonable basis in both fact and law. Pierce v. Underwood, 487 U.S. 552, 556, 108 S.Ct. 2541, 2545, 101 L.Ed.2d 490 (1988); Barry v. Bowen, 825 F.2d 1324, 1330 (9th Cir.1987). The agency's "position" refers to the agency's decision to initiate the underlying action, as well as the agency's subsequent litigation positions. Rawlings v. Heckler, 725 F.2d 1192, 1195-96 (9th Cir.1984).
Mendenhall asserts that the FAA was estopped from bringing the underlying action because of her compliance with all of its initial recommendations. She insists that after being notified of the three substandard maneuvers in her performance, she immediately followed the recommendations of FAA Inspector Evans. She obtained the additional training at considerable personal expense, and attempted to schedule a reexamination with the Long Beach FSDO. Despite being notified of her compliance with agency recommendations, the FAA denied her reexamination request and issued an order revoking her Flight Instructor certificate and instrument rating.
The Ninth Circuit has long recognized that estoppel is available as a defense against the government if the government's wrongful conduct threatens to work "a serious injustice, and the public's interest will not suffer undue damage by imposition of liability." Watkins v. U.S. Army, 875 F.2d 699 (9th Cir.1989).
In light of Mendenhall's concerted effort to comply with the FAA's recommendations, the agency's subsequent refusal to administer a reexamination might appear to "work a serious injustice." However, the FAA had reasonable cause for concern based on Mendenhall's repeated failures on practical examinations. Thus, although the FAA could have been more straightforward about its concerns and requirements prior to Mendenhall's expending funds for additional training, its conduct did not work "a serious injustice." Mendenhall's compliance with recommendations alone did not estop the agency from initiating certificate action against her.
Mendenhall asserts that by issuing her an ATP Certificate on May 16, 1992, the FAA had constructive notice of her qualifications. Administrator v. Rothbart and Voorhees, NTSB Order No. EA-3052 (1990) (). In addition, Mendenhall asserts that FAA's counsel was provided actual notice of her qualification because upon receiving the FAA's emergency order of revocation on May 23, 1992, she immediately surrendered to the agency's counsel her pilot certificate plainly captioned, "AIRLINE TRANSPORT PILOT" issued only one week earlier and clearly dated May 16, 1992.
Despite physical possession of the surrendered certificate and having "noticed that it was an ATP certificate," FAA's counsel nevertheless filed the emergency order of revocation as a complaint before the NTSB. In doing so, the agency violated its own policy as well as Mendenhall's rights under California law.
FAA Order 2150.3A, Compliance and Enforcement Program,...
To continue reading
Request your trial
-
U.S. v. Aisenberg
...Court misconstrued the cap on fees awarded under § 2412(d) as applying to all fees awarded under § 2412."). Mendenhall v. Nat'l Transp. Safety Bd., 92 F.3d 871, 876 (9th Cir.1996) ("Mendenhall requests fees at a reasonable market rate. Such a rate is appropriate where there is a showing of ......
-
Gonzalez v. State Of Ariz., 08-17094
...request [for] attorneys' fees at a reasonable market rate.... is appropriate where there is a showing of bad faith,” Mendenhall v. NTSB, 92 F.3d 871, 876 (9th Cir.1996). Rather, it realized that the prior panel had mistakenly applied a statute awarding attorney's fees to litigants who preva......
-
Ibrahim v. U.S. Dep't of Homeland Sec.
...totality of the government’s conduct, particularly its comportment after discovering Agent Kelley’s error. See Mendenhall v. Nat’l Transp. Safety Bd. , 92 F.3d 871 (9th Cir. 1996).33 In Mendenhall , we held that a government agency, there the FAA, acted in bad faith, thereby allowing the pr......
-
Center for Biological Diversity v. Bureau of Land
...of law or when the record contains no evidence on which it could have rationally based that decision." Mendenhall v. Nat'l Transp. Safety Bd., 92 F.3d 871, 874 (9th Cir.1996). A. Substantive Challenges to Final Critical Habitat (1) Use of Allegedly Improper Legal Standard Plaintiffs contend......
-
Standards of Review and Federal Court Remedies
...under an abuse of discretion standard. See, e.g., Gutierrez v. Barnhart , 274 F.3d 1255, 1259 (9th Cir. 2001), citing Mendenhall v. NTSB , 92 F.3d 871, 874 (9th Cir. 1996). However, 28 U.S.C. §405 (g) does not provide for an abuse of discretion standard for the review of agency decisions. O......
-
Standards of Review and Federal Court Remedies
...under an abuse of discretion standard. See, e.g., Gutierrez v. Barnhart , 274 F.3d 1255, 1259 (9th Cir. 2001), citing Mendenhall v. NTSB , 92 F.3d 871, 874 (9th Cir. 1996). However, 28 U.S.C. § 405 (g) does not provide for an abuse of discretion standard for the review of agency decisions. ......