Paskar v. Federal Aviation Administration

FILED NOT FOR PUBLICATION AUG 22 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KENNETH D. PASKAR; FRIENDS OF No. 13-71514 LAGUARDIA AIRPORT, INC., FAA-1 No. 13-1070 Petitioners, v. MEMORANDUM* FEDERAL AVIATION ADMINISTRATION; MICHAEL P. HUERTA; RAY LAHOOD, Secretary, United States Department of Transportation, Respondents. On Petition for Review of an Order of the Federal Aviation Administration Submitted June 5, 2013** Pasadena, California Before: KOZINSKI, Chief Judge, GOULD and N.R. SMITH, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). page 2 Petitioner Kenneth Paskar seeks to recover $19,450 in fees accrued in connection with his Petition for Review under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Because Paskar’s challenge to the FAA’s planned closure of various air traffic control towers was dismissed without a judgment on the merits or court-ordered consent decree, Paskar does not qualify as a “prevailing party” within the meaning of the EAJA. See Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir. 2002); see also Buckhannon Board & Care Home, Inc. v. W. Va. Dep’t. of Health & Human Res., 532 U.S. 598, 610 (2001). Accordingly, his application for fees is DENIED.