Application of Bordelon

• Decision Date: 24 October 2011
• Docket Number: 351-EAJA-SE-18931
• Parties: APPLICATION OF FRANK J. BORDELON For an award of attorney fees and expenses under the Equal Access to Justice Act NTSB Order No. EA-5601
• Court: Court of National Transportation Safety Board

APPLICATION OF FRANK J. BORDELON For an award of attorney fees and expenses under the Equal Access to Justice Act NTSB Order No. EA-5601

No. 351-EAJA-SE-18931

United States Court of National Transportation Safety Board

October 24, 2011

Adopted by the NATIONAL TRANSPORTATION SAFETY BOARD at its office in Washington, D.C. on the day 24^th of October, 2011

OPINION AND ORDER

WILLIAM R. MULLINS, Administrative Law Judge.

1. Background

The Administrator has appealed from the Equal Access to Justice Act (EAJA) written amended initial decision and order of Administrative Law Judge William R. Mullins, served on March 8, 2011.^[1] By that decision and order, the law judge granted applicant's EAJA^[2] application for an award of $28, 569.39 in attorney's fees and expenses, based on a finding that applicant was the prevailing party in the underlying appeal and the Administrator was not substantially justified in pursuing charges that applicant violated 14 C.F.R. §§ 43.9(a)(2) and (a)(4)^[3] and 43.13(a) and (b)^[4]. The Administrator appealed. We deny the Administrator's appeal.^[5]

Applicant holds a mechanic certificate with airframe and powerplant (A&P) ratings. He was employed as a mechanic for Auburn Flight Services (AFS) in Auburn, Washington. In January 2010, Shane Sullivan brought a Cirrus SR22 ("N224GS") to AFS for its annual inspection and maintenance. While N224GS was at AFS, four mechanics, including applicant, performed maintenance on the aircraft. The various mechanics working on the aircraft allegedly noted the maintenance in work orders but never recorded the maintenance in the aircraft logbooks. On February 3, 2010, applicant performed maintenance on the engine requiring removal of the cap assembly. The AFS director of maintenance (DOM), Greg Woodruff, signed the airworthiness certificate returning the aircraft to service on February 5, 2010. On March 19, 2010, N224GS was involved in an accident, fatally injuring Mr. Sullivan and injuring his passenger. During the accident investigation, Federal Aviation Administration (FAA) investigators determined a cap assembly had come loose and lodged in a different part of the engine, causing the accident.

The Administrator subsequently issued an emergency order on August 19, 2010, which later became the complaint in this case, seeking revocation of applicant's mechanic certificate with A&P ratings based upon applicant's alleged failure to make appropriate entries in the aircraft logbook and alleged failure to perform maintenance in accordance with the proper methods and techniques in violation of 14 C.F.R. §§ 43.9(a)(2) and (a)(4) and 43.13(a) and (b).^[6]The law judge set the hearing date for September 21, 2010. During a deposition on September 16, 2010, applicant admitted removing the cap assembly and not reinstalling it, but maintained the assembly needed to be left apart for subsequent inspection by a mechanic with inspection authority (IA). Mr. Woodruff, the DOM with IA, and James Bartley, an A&P mechanic with IA, also denied reinstalling the cap assembly.

The Administrator moved to withdraw the complaint, without prejudice, on September 20, 2010. Applicant filed a motion to terminate the proceedings with prejudice the following day. The law judge granted the withdrawal of the complaint with prejudice on September 30, 2010.^[7]

Subsequently, applicant submitted an application for fees under the EAJA, which the law judge granted, based on the law judge's conclusion that applicant was the prevailing party and the Administrator was not substantially justified in pursuing the case. In reaching his decision as to the prevailing party issue, the law judge applied the three-part test that the Court of Appeals for the District of Columbia Circuit set out in District of Columbia v. Straus.^[8] The law judge distinguished the case at hand from the case of Application Turner and Coonan.^[9] He noted since Turner and Coonan did not involve an emergency proceeding, the pilots never surrendered their airman certificates as applicant did here. With the Administrator's return of applicant's mechanic certificate after withdrawing the appeal, the law judge found a change in the legal relationship of the parties and that by dismissing the case with prejudice granted applicant judicial relief.^[10] The law judge found the Administrator was not substantially justified in bringing the case. As to the amount of the award, the law judge permitted applicant to recover 148.8 hours of fees and $1, 785.39 in expenses, for a total award of $28, 569.39.

The Administrator appealed the law judge's order and decision. The Administrator contends the law judge erred in finding applicant was the prevailing party; that the law judge erred in finding the FAA was not substantially justified in bringing this enforcement action; and that the law judge erred in the amount of the award granted under the EAJA.

2. Decision

A. Prevailing Party

In Turner and Coonan, supra, the Board addressed this issue of defining "prevailing party" under the EAJA. The D.C. Circuit affirmed our decision in Turner and Coonan, but indicated the controlling test is a three-part standard in which a party must prove (1) there was a court-ordered change in the legal relationship of the parties; (2) the judgment was in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief, in order to prove he or she prevailed in the underlying case.^[11] Subsequent to the D.C. Circuit's decision, we discussed this test, in dicta, in our decision in Administrator v. Koch.^[12] Since Koch was not an EAJA appeal but rather was an appeal of a law judge's order dismissing a case with prejudice, we did not expressly adopt the D.C. Circuit's three-part test in that opinion.

Therefore, this case presents us with the opportunity to adopt a clearly defined test for determining prevailing party status in an EAJA case and necessarily reject all prior Board precedent inconsistent with this test. We hereby adopt the three-part test for determining a prevailing party established by the D.C. Circuit in District of Columbia v. Straus.^[13] To determine whether a party has prevailed under the EAJA, "(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 the fees; and (3) the judicial pronouncement must be accompanied by judicial relief." Id.

1. Historical Development of the "Prevailing Party" Concept in Board Opinions and Orders and D.C. Circuit Opinions

To understand how we reached the decision to adopt this three-part test, we will discuss the historical development of this concept of prevailing party status for purposes of the EAJA under both Board and federal case law. In 1993, the Board observed, "although EAJA does not define 'prevailing party, ' the term requires that the final result represent in a real sense a disposition that furthers [applicant's] interest."^[14] In 1996, in Application of Swafford and Coleman, ^[15] the Board defined prevailing party by stating that "[a]pplicants need only show that they have won 'a significant and discrete substantive portion of the proceeding.' 49 C.F.R. § 826.5(a)."

In May 2001, the United States Supreme Court decision in Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources^[16] sought to resolve conflicts between the courts of appeals on fee-shifting provisions in civil litigation. The Court found:

In addition to judgments on the merits, we have held that settlement agreements enforced through a consent decree may serve as the basis for an award of attorney's fees Although a consent decree does not always include an admission of liability by the defendant, it nonetheless is a court-ordered "chang[e] [in] the legal relationship between [the plaintiff] and the defendant." These decisions, taken together, establish 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's fees

Id. at 604.

Relying on Buckhannon, the Board in Turner and Coonan^[17] and Application of Air Trek^[18] tested for prevailing party status by examining whether the applicants (1) received an enforceable judgment on the merits of the case or (2) obtained a court-ordered consent decree that resulted in a change in the legal relationship between the parties. In Turner and Coonan, the Board stated, "[t]he law judge did not dismiss the case with prejudice or in any way alter the relationship of the parties."^[19] The Board further found, even if Buckhannon did not apply, the applicants still would not have attained prevailing party status because an adversarial adjudication under the Administrative Procedure Act, 5 U.S.C. § 504, had not occurred.

As mentioned, supra, the D.C. Circuit reviewed the Board's decision in Turner and Coonan. The D.C. Circuit made reference to its three-part test from Straus but did not analyze Turner and Coonan under this test as the court agreed with the Board that, as a matter of law, the pilots were not prevailing parties. In dicta, the court indicated its definition of prevailing party was not limited to a two-part test of whether a party had obtained an enforceable judgment on the merits or a court-ordered consent decree:

We do note that although the NTSB concluded a party prevails only if he receives "an enforceable judgment on the merits of [his] case" or "a court-ordered consent decree that resulted in a change in the legal relationship between the parties, " under the test laid out in Straus a party need receive only some form of judicial relief, not necessarily a court-ordered consent decree or a judgment on the merits.^[20]

The court also affirmed the Board's conclusion that, since the law judge did not dismiss the case...