Green Aviation Mgmt. Co. v. Fed. Aviation Admin.

• Decision Date: 17 April 2012
• Docket Number: No. 11–1260.,11–1260.
• Citation: 676 F.3d 200
• Parties: GREEN AVIATION MANAGEMENT CO., LLC, Petitioner v. FEDERAL AVIATION ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

676 F.3d 200

GREEN AVIATION MANAGEMENT CO., LLC, Petitioner

v.FEDERAL AVIATION ADMINISTRATION, Respondent.

No. 11–1260.

United States Court of Appeals, District of Columbia Circuit.

Argued March 12, 2012.Decided April 17, 2012.

On Petition for Review of an Order of the Federal Aviation Administration.Gregory Sean Winton argued the cause and filed the briefs for petitioner.

Benjamin S. Kingsley, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Tony West, Assistant Attorney General, and Michael Jay Singer, Attorney.

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge.

This is an appeal from the denial of attorneys fees under the Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504(a)(1). After commencing an administrative civil penalties proceeding, the Federal Aviation Administration (“FAA”) withdrew its complaint and the Administrative Law Judge (“ALJ”) before whom the complaint had been pending dismissed the proceedings with prejudice. Nonetheless, the FAA Administrator ruled that the subject of the complaint was not a “prevailing party” as that term has been interpreted in Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Because the dismissal with prejudice has res judicata effect and ended the proceedings, we grant the petition and remand the case to the Administrator to determine whether the filing of the complaint was substantially justified, and if not, to award fees.

I.

On February 6, 2007, the FAA filed a complaint against Green Aviation Management Co., LLC, alleging that on a chartered flight from New Jersey to the Bahamas on December 30, 2005, returning January 2, 2006, its plane carried ten, rather than the approved nine, passengers. The tenth passenger was the daughter of the pilot, and the FAA alleged that she was either an unapproved tenth passenger or an untrained flight attendant and sought a civil penalty of $33,000 for violations of three FAA safety regulations. Green Aviation responded that the daughter was a non-required crew member, and as an employee of Green Aviation, she was permitted by FAA regulations to occupy the jump seat on the plane. On June 1, 2007, Green Aviation moved to dismiss, arguing that the daughter was an employee who only served food and drink during the flight, and noting that the FAA had already withdrawn its complaint in the certificate action against the pilots based on the same set of facts. The FAA opposed summary judgment because the daughter's employment status was in doubt and there was no proof she was not simply coming along on vacation. On June 19, 2007, Green Aviation moved for dismissal of the complaint with prejudice on the ground, incorrectly, that the FAA failed to respond to the motion to dismiss. The ALJ denied the motions for summary disposition on June 28, 2007, finding that material disputed questions of fact remained regarding the daughter's employment status.

Green Aviation sought reconsideration on August 3, 2007, submitting an affidavit from its customer service representative stating that the daughter functioned as a crew member on the subject flights, assigned only to serve food and drinks. The FAA responded with a newer affidavit from the customer service representative stating that her previous affidavit was incomplete and the daughter was expected to be trained to perform safety duties. The ALJ denied the motion for reconsideration and scheduled a hearing for October 16, 2007.

On September 18, 2007, Green Aviation moved to exclude the customer service representative's testimony at the hearing, attaching an email between her and one of the flight captains in which she disclaimed knowledge of the daughter's role on the flight. The FAA, on October 1, 2007, withdrew its complaint. In view of the withdrawal, Green Aviation moved the following day for dismissal of the proceedings with prejudice. Pursuant to 14 C.F.R. § 13.215 (2012), the ALJ dismissed the proceedings with prejudice on October 2, 2007.

Green Aviation filed an application for attorneys fees and other expenses pursuant to the EAJA on October 19, 2007. The ALJ found that Green Aviation was the “prevailing party” under the EAJA, which was uncontested, but denied the request for fees, finding that the FAA was substantially justified in bringing the complaint given the unclear nature of the daughter's role, training, and employment status. Upon appeal, the FAA Administrator found that Green Aviation was not the “prevailing party,” under the interpretation of that phrase in Buckhannon. The Administrator reasoned that because the ALJ was required by regulation to dismiss the proceedings with prejudice once the FAA withdrew its complaint, and because the regulation did not require the ALJ's consent for the FAA to do so, there was no exercise of judicial discretion or any judicial imprimatur to the dismissal order. The Administrator thus sustained the denial of fees.

II.

Green Aviation petitions for review, contending that Buckhannon's interpretation of “prevailing party” does not necessarily apply to that phrase in EAJA claims under 5 U.S.C. § 504(a)(1) and that the Administrator's analysis is contrary to precedent, inasmuch as Green Aviation obtained a court-ordered change in the legal relationship of the parties and the necessary judicial relief. We review de novo whether Green Aviation was a “prevailing party” under 5 U.S.C. § 504(a)(1), see Turner v. Nat'l Transp. Safety Bd., 608 F.3d 12, 14 (D.C.Cir.2010), and because the EAJA is a statute of general application, we do not defer to any one agency's interpretation, id.

A.

The EAJA provides that “[a]n 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 ..., 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). The Supreme Court interpreted the phrase “prevailing party” in a different fee-shifting statute in Buckhannon, holding that it was insufficient that a plaintiff's lawsuit may have led to “a nonjudicial alteration of actual circumstances,” 532 U.S. at 606, 121 S.Ct. 1835 (internal quotation marks and citation omitted), and instead requiring that a party demonstrate “the necessary judicial imprimatur” such that a “judicial pronouncement” is accompanied by “judicial relief,” id. at 605–06, 121 S.Ct. 1835 (internal quotation marks, citations, and emphasis omitted). The Court noted that it has “interpreted [ ] fee-shifting provisions consistently.” Id. at 603 n. 4, 121 S.Ct. 1835. This court, accordingly, concluded that the phrase “prevailing party” in such statutes “should be treated the same ... unless there is some good reason for doing otherwise,” Oil, Chem., & Atomic Workers Int'l Union, AFL–CIO v. Dep't of Energy, 288 F.3d 452, 455 (D.C.Cir.2002), and has joined other circuits in acknowledging that the burden of establishing “good reason[ ]” not to apply Buckhannon is “not easily met,” Alegria v. Dist. of Columbia, 391 F.3d 262, 264 & n. 1 (D.C.Cir.2004) (internal quotation marks and citation omitted).

The court has not expressly decided that the Buckhannon interpretation of “prevailing party” applies to the EAJA's administrative adjudication provision, see Thomas v. Nat'l Sci. Found., 330 F.3d 486, 493 n. 2 (D.C.Cir.2003); Turner, 608 F.3d at 15 n. 3, although it has applied Buckhannon to the EAJA's civil litigation provision, 28 U.S.C. § 2412(d)(1)(A), see Thomas, 330 F.3d at 492–93. In Turner, the court applied Buckhannon's definition of “prevailing party” to EAJA's administrative provision without “determin[ing] whether ... Buckhannon necessarily or always applies to that phrase in § 504(a)(1),” 608 F.3d at 15 n. 3, because the party seeking fees saw no distinction between agency and court cases. Although Green Aviation contends there is a distinction, its effort to establish it as a “good reason” not to apply Buckhannon fails.

Green Aviation contends that Buckhannon should not control the meaning of “prevailing party” in section 504(a)(1) civil penalty proceedings on the basis of several policy reasons, including the potential creation of a perverse incentive for the FAA to file unfounded complaints that it could later withdraw after the defendant has incurred monetary and other costs. As Green Aviation points out, unlike Fed.R.Civ.P. 41, which grants a judge discretion to dismiss with or without prejudice after approving a voluntary withdrawal of a complaint, the FAA regulation mandates dismissal with prejudice, see 14 C.F.R. § 13.215 (2012). As a result, if the FAA is correct that Buckhannon' s interpretation of “prevailing party” turns on the judge's discretion, then application of Buckhannon in this context would permit the FAA to avoid fees, regardless of whether the complaint was frivolous or otherwise not substantially justified, by withdrawing its complaint prior to or during a hearing. This circumstance, however problematic, is insufficient to prevent application of Buckhannon to the administrative provision of the EAJA, 5 U.S.C. § 504(a)(1). First, the court has applied Buckhannon to attorneys fee applications in another administrative setting, see Alegria, 391 F.3d at 264. Second, most significantly, in Buckhannon, the Supreme Court rejected the relevance of such policy arguments as Green Aviation presents given its view of the “clear meaning” of the phrase “prevailing party.” 532 U.S. at 610, 121 S.Ct. 1835. Green Aviation's policy reasons thus do not establish a good reason not to apply Buckhannon's interpretation of “prevailing party” to the EAJA's administrative provision. Consequently, this appeal turns on whether the ALJ's dismissal with prejudice...