United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2010 Decided June 8, 2010
No. 09-1225
MARK K. TURNER AND STEPHEN J. COONAN,
PETITIONERS
v.
NATIONAL TRANSPORTATION SAFETY BOARD,
RESPONDENT
On Petition for Review of an Order
of the National Transportation Safety Board
Gregory Sean Winton argued the cause and filed the
briefs for petitioners.
Kathleen A. Yodice was on the brief for amicus curiae
Aircraft Owners and Pilots Association in support of
petitioners.
Benjamin S. Kingsley, Attorney, U.S. Department of
Justice, argued the cause for respondent. With him on the
brief were Michael Jay Singer and Michael E. Robinson,
Attorneys.
Before: GINSBURG, ROGERS and KAVANAUGH, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: The Federal Aviation
Administration suspended the Airline Transport Pilot
Certificates of Mark Turner and of Stephen Coonan, the pilots
appealed, and the FAA withdrew its complaints before an
Administrative Law Judge could hear their appeal. The ALJ
then awarded the pilots attorneys fees and expenses pursuant
to the Equal Access to Justice Act (EAJA), codified as
amended in relevant part at 5 U.S.C. § 504, concluding each
pilot was the “prevailing party” in his case. The FAA
appealed to the National Transportation Safety Board, which
reversed the award, and the pilots now petition for review of
the Board’s order. We deny their petition.
I. Background
The FAA suspended the pilots’ certificates because it
concluded they had, among other things, operated an aircraft
that was “unairworthy,” in violation of 14 C.F.R. § 91.7(a).
Each pilot appealed his suspension, and both cases were
assigned to the same ALJ, who scheduled hearings for June
2008. In April the ALJ granted motions to continue the cases
and re-scheduled the hearings for August.
Soon thereafter, however, the FAA withdrew the
complaint against each pilot, stating only: “The Administrator
hereby withdraws its [sic] complaint in this matter.” The ALJ
terminated the proceedings against the pilots with an equally
terse order that did not specify whether the termination was
with or without prejudice.
Invoking the EAJA, the pilots sought to recover their
attorneys fees and expenses. Section 504(a)(1) of 5 U.S.C.
3
codifies the provision of the EAJA, as amended, that
addresses fee-shifting in agency adjudications. It provides:
An agency that conducts an adversary adjudication shall
award, to a prevailing party ... 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. *
The pilots argued they were “prevailing parties” because
the FAA withdrew its complaints against them and the
agency’s position “lacked ... substantial justification.” The
ALJ agreed, holding that “[w]ith the ... total withdrawal of all
of the Administrator’s charges ... it is clear that the applicants
are the prevailing parties here,” and that, far from being
“substantially justified,” the FAA had “proceeded on a weak
and tenuous basis with a flawed investigation bereft of any
meaningful evidence.”
The FAA appealed to the NTSB, arguing the pilots were
not prevailing parties and therefore were not entitled to fees
under the EAJA. The Board, after acknowledging its “case
law concerning prevailing party status under the EAJA may
need clarification,” determined that the question whether the
pilots were the prevailing parties was governed by the
Supreme Court’s decision in Buckhannon Board and Care
Home, Inc. v. West Virginia Department of Health and
*
Another section of the Act as amended, codified at 28 U.S.C. §
2412(d)(1)(A), similarly provides:
[A] court shall award to a prevailing party [fees and other
expenses] in any civil action ... brought by or against the
United States ... unless the court finds that the position of the
United States was substantially justified.
4
Human Resources, 532 U.S. 598 (2001), notwithstanding that
Buckhannon arose from a civil action and not from an agency
adjudication. The NTSB understood Buckhannon to define a
prevailing party as one who either “receive[d] an enforceable
judgment on the merits of [his] case” or “obtain[ed] a court-
ordered consent decree that resulted in a change in the legal
relationship between the parties.”
The NTSB held the pilots were not prevailing parties:
They did not “prevail on any portion of the merits ... as the
Administrator withdrew the charges before the [ALJ] could
hold a hearing”; and the ALJ did not “issue an order akin to a
court-supervised consent decree” because he “merely
accepted the Administrator’s withdrawal of the charges.” The
Board further concluded the ALJ “did not dismiss the case
with prejudice or in any way alter the relationship of the
parties.” *
One member of the Board dissented. He maintained
Buckhannon does not apply to this case because the Court’s
holding there was limited to rejecting the “catalyst theory,”
under which a party prevails if it “achieved the desired result
because [its] lawsuit brought about a voluntary change in the
defendant’s conduct,” 532 U.S. at 600, whereas the pilots here
had not initiated proceedings but rather had successfully
defended themselves against the FAA’s lawsuit.
*
The NTSB also held the pilots were not entitled to fees because §
504(a)(1) of the EAJA applies only where there was “an adversarial
adjudication,” but the FAA does not defend that argument in its
brief to this court.
5
II. Analysis
The pilots’ main argument is that they were “prevailing
parties” within the meaning of that term in 5 U.S.C. §
504(a)(1). They also contend they were entitled to fees and
other expenses under § 504(a)(4).
A. Section 504(a)(1)
We review de novo the question of law whether the pilots
were prevailing parties for purposes of § 504(a)(1). See
Thomas v. Nat’l Sci. Found., 330 F.3d 486, 491 (D.C. Cir.
2003). Because the EAJA is a statute of general application,
we do not defer to the NTSB’s or to any one agency’s
interpretation of it. See, e.g., Contractor’s Sand & Gravel,
Inc. v. Fed. Mine Safety & Health Review Comm’n, 199 F.3d
1335, 1339 (D.C. Cir. 2000) (court not “bound to defer to the
agency’s construction” of the EAJA because “[it] is a statute
of general application and not one committed to
administration by the Commission or the Secretary”).
This court has distilled from Buckhannon a three-part test
for determining whether a party has “prevailed”:
(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.
District of Columbia v. Straus, 590 F.3d 898, 901 (D.C. Cir.
2010) (quoting Thomas, 330 F.3d at 492–93) (internal
quotation marks removed). * We “have applied [the] latter
*
As the Government acknowledges, we have never specifically
held Buckhannon defines “prevailing party” as it is used in §
6
two requirements [of that test] to requests by defendants,” see
id., and we need not consider here whether the first
requirement also applies because we think it clear the pilots
received nothing akin to judicial relief and therefore were not
prevailing parties. 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. See Carbonell v. INS, 429 F.3d 894, 899 (9th
Cir. 2005) (collecting cases from the “vast majority” of
circuits holding prevailing party status not so limited); see
also, e.g., District of Columbia v. Jeppsen, 514 F.3d 1287,
1290 (D.C. Cir. 2008) (acknowledging possibility that “ruling
on a jurisdictional ground” may create prevailing party
despite absence of a judgment on merits); Select Milk
Producers, Inc. v. Johanns, 400 F.3d 939, 945 (D.C. Cir.
2005) (grant of preliminary injunction may create prevailing
party “under certain circumstances”); Carbonell, 429 F.3d at
895–96 (plaintiff who “obtained a court order incorporating a
voluntary stipulation” staying plaintiff’s deportation was
prevailing party). There is no need to remand this case for the
504(a)(1), which governs fee-shifting in an agency adjudication;
our cases broadly stating the “understanding of ‘prevailing party’
[in Buckhannon] applies to EAJA’s use of the term,” e.g., Consol.
Edison Co. v. Bodman, 445 F.3d 438, 447 (2006), have all involved
28 U.S.C. § 2412(d)(1)(A), which concerns fee-shifting in a civil
action. Because the pilots themselves acknowledge no distinction
between agency and court cases, we proceed upon that premise and
do not determine whether the understanding of “prevailing party” in
Buckhannon necessarily or always applies to that phrase in §
504(a)(1).
7
NTSB to apply that test, however, because we conclude the
pilots are not prevailing parties as a matter of law.
The pilots contend they prevailed because the ALJ
dismissed their cases with prejudice and thereby changed the
legal relationship between the parties. The FAA maintains
the ALJ dismissed the cases without prejudice, and a
“dismissal without prejudice ... cannot be a ‘court ordered
change in the legal relationship of the parties’” in this case
because the pilots “were left in exactly the same legal position
they would have been in had there been no proceedings in the
first place.”
First, we conclude that, although his order is silent on the
subject, the ALJ dismissed the complaints without prejudice.
That is consistent with the rule in civil proceedings; when a
court dismisses a complaint at the request of the plaintiff, the
dismissal is presumed to be without prejudice. See Fed. R.
Civ. P. 41(a)(2). It is also consistent with the Board’s
treatment of the similarly silent order in Administrator v.
Tanner, 4 N.T.S.B. 1354 (1984).
The pilots nonetheless contend the order should be
considered a dismissal with prejudice because it came after
the statute of limitations had run on the charges brought by
the FAA; as a practical matter, they say, the dismissal protects
the pilots from the FAA ever reviving the charges. We need
not evaluate this argument on its merits because the pilots
have not identified a statute of limitations with that effect.
They point only to 49 C.F.R. § 821.33(a), but that regulation
merely authorizes an ALJ, upon motion, to dismiss a
complaint the FAA files more than six months after the
alleged events occurred if and only if the FAA fails to show
either that “good cause existed for the delay” or that “the
imposition of a sanction is warranted in the public interest.”
8
A provision that requires an additional showing in order to
file a complaint after a certain time is not a statute of
limitations and does not change the legal relationship between
the parties in any meaningful way. *
Because the ALJ dismissed the cases without prejudice,
there was nothing in this case analogous to judicial relief. See
Straus, 590 F.3d at 901. Once the FAA withdrew its
complaints, the pilots were no longer the subject of
proceedings to suspend their licenses. For all practical
purposes, the FAA had unilaterally ended the adversarial
relationship between the parties, leaving them where they
were before the complaint was filed. The order of the ALJ
dismissing the cases was just an administrative housekeeping
measure, not a form of relief, because the FAA did not need
the ALJ’s permission to withdraw a complaint. See 49 C.F.R.
§ 821.12(b) (“Except in the case of ... a complaint ...
pleadings may be withdrawn only upon approval of the [ALJ]
or the [NTSB]”). Had the ALJ done nothing, the pilots would
have been in essentially the same position as they were after
the ALJ dismissed this case. These circumstances do not
make them prevailing parties according to the criteria of
Buckhannon as interpreted in Straus.
The pilots also argue the NTSB violated its own rules and
arbitrarily interpreted its own precedent in concluding they
were not prevailing parties under Buckhannon. We need not
address that argument because our holding the pilots were not
prevailing parties as a matter of law renders harmless any
such alleged error. See PDK Labs. Inc. v. DEA, 362 F.3d 786,
*
We also doubt whether § 821.33(a) creates a demanding
requirement for the FAA; a court would likely defer to the agency’s
interpretation of its own regulation that it is in the public interest to
sanction a pilot for conduct that makes flying less safe.
9
799 (D.C. Cir. 2004) (if “agency’s mistake ... did not
prejudice” petitioner then it “would be senseless to vacate and
remand for reconsideration”). *
B. Section 504(a)(4)
In the alternative the pilots argue they are entitled to fees
and other expenses under § 504(a)(4). That subsection
provides:
If ... the demand by the agency is substantially in excess
of the decision of the adjudicative officer and is
unreasonable when compared with such decision ...
[then] the adjudicative officer shall award to the party
[its] fees and other expenses.
They contend the FAA’s demand that they be suspended was
“substantially in excess” of the ALJ’s decision dismissing the
case. The FAA responds that § 504(a)(4) does not apply here
because that provision addresses only situations in which the
Government prevails but “obtains a judgment that is less than
it [had] sought.”
We agree that § 504(a)(4) applies only when the
Government has prevailed. As the Seventh Circuit has
pointed out, the interpretation of § 504(a)(4) the pilots are
advancing here would
undercut the “substantially justified” standard of [§
504(a)(1)] by giving litigants a second bite at the same
apple under a different (but seemingly not a more
demanding) standard. The sensible interpretation ...
*
The pilots’ other arguments do not merit treatment in a published
opinion.
10
confines [§ 504(a)(4)] to the case in which the
government prevails but the relief it obtains is meager in
comparison to the relief it had sought.
See Park Manor, Ltd. v. Dep’t of Health and Human Servs.,
495 F.3d 433, 437 (2007). In short, the pilots may not recover
under § 504(a)(4) in this case because the FAA did not
prevail.
III. Conclusion
Because the pilots are not prevailing parties for purposes
of § 504(a)(1), they are not entitled to recover their attorneys
fees and expenses under that section. Because the FAA did
not prevail, the pilots are not entitled to attorneys fees and
expenses under § 504(a)(4). Accordingly, their joint petition
for review of the NTSB order is
Denied.