United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 2012 Decided April 17, 2012
No. 11-1260
GREEN AVIATION MANAGEMENT CO., LLC,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
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
2
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 (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had already withdrawn its complaint in the certificate action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
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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
4
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 (internal quotation marks and
citation omitted), and instead requiring that a party demonstrate
“the necessary judicial imprimatur” such that a “judicial
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pronouncement” is accompanied by “judicial relief,” id. at
605–06 (internal quotation marks, citations, and emphasis
omitted). The Court noted that it has “interpreted [] fee-shifting
provisions consistently.” Id. at 603 n.4. 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
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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. 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 satisfies
Buckhannon’s requirements.
B.
Upon the FAA’s withdrawal of its complaint against Green
Aviation, the ALJ was required to dismiss the proceedings with
prejudice. FAA regulations provide:
At any time before or during a hearing, an agency
attorney may withdraw a complaint . . . without the
consent of the administrative law judge. If an agency
attorney withdraws the complaint . . . , the
administrative law judge shall dismiss the proceedings
7
under this subpart with prejudice.
14 C.F.R. § 13.215 (2012). The FAA found that Green Aviation
was not a “prevailing party” because the regulation did not
provide any discretion to the ALJ in whether to dismiss the
complaint with or without prejudice, and thus the dismissal order
lacked the “judicial imprimatur” required by Buckhannon, 532
U.S. at 605.
In applying Buckhannon, the court considers a three-part test
for determining whether one is a “prevailing party”:
(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.
Turner, 608 F.3d at 15 (quoting Straus, 590 F.3d at 901 (internal
quotation marks and citation omitted)). Where a defendant is
seeking fees, as here, the court has applied only the latter two
prongs. See Dist. of Columbia v. Ijeabuonwu, 642 F.3d 1191,
1194 (D.C. Cir. 2011); Turner, 608 F.3d at 15; Straus, 590 F.3d
at 901.1 Because the ALJ’s order dismissed the proceedings, the
1
The FAA contends that the first prong should also apply to
a defendant. In Turner, the court noted that it need not decide whether
a defendant must also establish the first prong, because in that case,
the defendants did not meet the third. 608 F.3d at 12. Here, the FAA
does not contest that there has been a change in the legal relationship
of the parties; it concedes that res judicata effect applies to the
dismissal order. See FAA Decision & Order, at 14 (June 13, 2011).
Instead, it contends that the change was not “court-ordered” because
the ALJ lacked discretion under FAA regulations once the complaint
was withdrawn. See Resp.’s Br. at 20–21. Because the court rejects
FAA’s same substantive argument in determining whether there has
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second prong is easily satisfied. And there was a clear “judicial
pronouncement”; the ALJ signed a dismissal order. The
remaining question is whether the order granted judicial relief.
In recognizing that a defendant who obtains a favorable
decision gains “prevailing party” status if “the judicial
pronouncement [is] accompanied by judicial relief,” Turner, 608
F.3d at 15 (quoting Straus, 590 F.3d at 901), the court explained
that “a party need receive only some form of judicial relief,” id.,
and that “res judicata effect would certainly qualify as judicial
relief where, for example, it protected the prevailing [party] from
having to pay damages or alter its conduct,” Straus, 590 F.3d at
902. Nonetheless, the FAA, in concluding Green Aviation was
not a prevailing party, found Turner “instructive” because the
FAA did not need the ALJ’s permission to withdraw its
complaint under applicable procedural rules. FAA Dec. &
Order, at 15 (Jun. 13, 2011). This reliance was misplaced.
In Turner, the court was considering a certificate action
against two pilots before the National Transportation Safety
Board (“NTSB”). 608 F.3d at 13. Prior to the scheduled
hearing, the FAA withdrew its complaints and the ALJ issued an
order terminating the proceedings without stating whether the
dismissal was with or without prejudice. The court held that the
pilots were not “prevailing parties” upon applying the
presumption that when a complaint is dismissed at the request of
the plaintiff, it is without prejudice — a presumption the NTSB
been a “judicial pronouncement . . . . accompanied by judicial relief,”
(i.e., the third prong), there is no occasion to decide whether a
defendant is required to satisfy the first prong of the test. Simply said,
it does not matter whether the first prong applies because the ALJ’s
dismissal with prejudice is itself a “court ordered change in the legal
relationship of the parties.”
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itself had previously applied to a dismissal that was silent on the
question. See id. at 15–16.
Because the ALJ dismissed the cases without prejudice,
there was nothing in th[e] case analogous to judicial
relief. . . . [T]he 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.
Id. at 16 (internal citations omitted). Here, by contrast, Green
Aviation and the FAA are not “where they were before the
complaint was filed.” Id. Instead Green Aviation is “protected
. . . from having to pay damages,” Straus, 590 F.3d at 902,
arising from events underlying the February 6, 2007 complaint.
Although the two-year statute of limitations had not lapsed at the
time the complaint was withdrawn, see 14 C.F.R. 13.208(d), the
FAA could not re-file a complaint based on the same set of facts
because the dismissal with prejudice has res judicata effect. See
Straus, 590 F.3d at 902.
Further, unlike in Thomas, where the grant of a preliminary
injunction and partial summary judgment were “not the end but
the means of the litigation,” 330 F.3d at 494 (internal quotation
marks and citation omitted), the dismissal with prejudice brought
a final end to the February 6, 2007 proceedings. Even though the
ALJ’s permission was not needed for the complaint to be
withdrawn, the resulting dismissal was a clear form of judicial
relief, not simply a “housekeeping measure,” Turner, 608 F.3d
at 16. Similarly, the dismissal order was not “merely a
formality,” as in Oil, Chemical, & Atomic Workers, where the
dismissal order was unnecessary, 288 F.3d at 457 (citing FED. R.
10
CIV. P. 41(a)(1)). The FAA regulation, 14 C.F.R. § 13.215,
makes clear that the dismissal order is necessary; if it were not,
there would be no purpose to providing the defendant an
interlocutory appeal by right to obtain one, see id. §
13.219(c)(2). Because a silent dismissal order is presumed to be
without prejudice, see Turner, 608 F.3d 15–16, an explicit
dismissal with prejudice, even if mandated by regulation, must
be accorded substantively meaningful rather than insignificant
effect, cf. Corley v. United States, 129 S. Ct. 1558, 1566 (2009).
The dismissal order is thus not a mere formality or a
housekeeping measure; rather it is the means by which Green
Aviation can obtain res judicata protection.
The FAA’s focus on the ALJ’s lack of discretion mistakes
the clear import of Buckhannon, which is about whether the party
seeking fees has “obtain[ed] any judicial relief.” 532 U.S. at
606. In the context of an administrative proceeding,
Buckhannon’s interpretation of “prevailing party” does not turn
on whether a federal agency decides to require, by regulation,
that dismissals be with prejudice once a complaint has been
withdrawn. The EAJA already protects the government from
paying fees where it, despite not prevailing, was “substantially
justified” in filing the complaint or where “special
circumstances” are present that disfavor a fee award. See 5
U.S.C. § 504(a)(1); LePage’s 2000, Inc. v. Postal Regulatory
Comm’n, No.10-1031, slip op. at 6–7 (D.C. Cir. Apr. 7, 2012).
Green Aviation obtained judicial relief by the dismissal order;
nothing in Buckhannon or this court’s precedent requires more.
This conclusion comports with the purpose of the EAJA, which
is to prevent defendants from “be[ing] deterred from seeking
review of or defending against unreasonable governmental action
because of the expense involved.” H.R. CONF. REP. NO. 96-
1434, at 21 (1980), reprinted in 1980 U.S.C.C.A.N. 5003, 5010
(1980).
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Because the October 16, 2007 dismissal order has res
judicata effect and brought the February 6, 2007 proceedings
against Green Aviation to an end, Green Aviation obtained
sufficient judicial relief to be a prevailing party. Accordingly,
we grant the petition and remand the case to the FAA
Administrator to determine whether the filing of the February 6,
2007 complaint against Green Aviation was substantially
justified, and if not, to determine the amount of fees to which it
is entitled.