Richard v. Hinson

United States Court of Appeals,

Fifth Circuit.

No. 95-60225

Summary Calendar.

Joseph Oran RICHARD, Petitioner,

v.

David R. HINSON, Administrator, FAA, Respondent.

Dec. 12, 1995.

Appeal from the final order of The National Transportation Safety
Board.

Before HIGGINBOTHAM, DUHÉ and EMILIO M. GARZA, Circuit Judges.

DUHÉ, Circuit Judge:

Petitioner argues that a provision of the Equal Access to

Justice Act violates the equal protection rights of individuals

with a net worth of over $2 million. He asks that we declare the

provision unconstitutional and award him fees and expenses. We

decline.

FACTS

A Federal Aviation Administration Administrator ordered the

emergency revocation of petitioner's airman certificate.

Eventually, all charges were dismissed by the National

Transportation Safety Board (NTSB) and petitioner's certificate was

reinstated. Petitioner applied for attorney's fees and expenses

pursuant to the Equal Access to Justice Act (EAJA).1 Under the

1
5 U.S.C. § 504 (Supp.1995). Other portions of the EAJA not
implicated here are codified at 28 U.S.C. § 2412 (1994) and 15
U.S.C. § 634b (Supp.1995).

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EAJA, individuals with a net worth less than $2 million are

entitled to reimbursement of fees and expenses if the government

agency cannot show substantial justification for its position

against that individual. 5 U.S.C. §§ 504(a)(1), 504(b)(1)(B)

(Supp.1995). Petitioner's application for fees and expenses was

denied because his net worth exceeds $2 million.2

DISCUSSION

We have jurisdiction under 49 U.S.C. § 1153 (1995) and 5

U.S.C. § 504(c)(2) (Supp.1995), which grant federal courts of

appeals jurisdiction over appeals from final orders of the NTSB.

We review the constitutionality of the EAJA net worth provision de

novo. United States v. Guajardo, 950 F.2d 203 (5th Cir.1991),

cert. denied, 503 U.S. 1009, 112 S.Ct. 1773, 118 L.Ed.2d 432

(1992). See also Stewart v. Parish of Jefferson, 951 F.2d 681, 683

(5th Cir.1992).

Although petitioner asserts that his Fourteenth Amendment

equal protection rights were violated, his claims actually arise

under the Fifth Amendment which protects parties from unjustifiable

discriminatory applications of law. Adarand Constructors, Inc. v.

Pena, --- U.S. ----, ---- - ----, 115 S.Ct. 2097, 2107-08, 132

L.Ed.2d 158 (1995); Torres v. Shalala, 48 F.3d 887 (5th Cir.1995).

The Fourteenth Amendment protects against actions by states but

here, the federal government is the subject of petitioner's

2
The NTSB made no finding regarding the substantial
justification requirement. Nevertheless, petitioner argues that
the FAA had no justification for revoking the certificate.
Because we uphold the net worth provision and find it
dispositive, we do not address this argument.

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complaints making the Fourteenth Amendment inapplicable. We employ

the same test to evaluate alleged equal protection violations under

the Fifth Amendment as we do under the Fourteenth Amendment.

Adarand, --- U.S. at ----, 115 S.Ct. at 2107; Torres, 48 F.3d at

890-91.

In evaluating an equal protection claim, we must first

determine the proper standard under which to review the

classification and then analyze the purpose of the legislation to

determine whether it satisfies the standard. United States R.R.

Retirement Bd. v. Fritz, 449 U.S. 166, 174, 101 S.Ct. 453, 459, 66

L.Ed.2d 368 (1980); Chrysler Corp. v. Texas Motor Vehicle Comm'n,

755 F.2d 1192 (5th Cir.1985). Strict scrutiny is required if the

legislative classification operates to the disadvantage of some

suspect class or impinges upon a fundamental right explicitly or

implicitly protected by the Constitution. San Antonio Indep. Sch.

Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16

(1973). Otherwise, the legislative classification need only bear

a rational relation to a legitimate governmental purpose. Torres,

48 F.3d at 891.

The EAJA provision classifies according to wealth which alone

is not a suspect criterion. San Antonio Indep. Sch. Dist., 411

U.S. at 28, 93 S.Ct. at 1294; Chrysler Corp., 755 F.2d at 1203.

Therefore, we review the provision under strict scrutiny only if it

impinges on a fundamental right. A fundamental right for equal

protection purposes is one that is explicitly or implicitly

protected by the Constitution. San Antonio Indep. Sch. Dist., 411

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U.S. at 29, 93 S.Ct. at 1294-95.

Petitioner argues that the net worth provision violates one

of his fundamental rights, his First Amendment right of access to

courts. In support, petitioner relies on Douglas v. California,

372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) and Griffin v.

Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) where

indigent criminal defendants could not be heard in court because

they could not pay filing and transcript fees. In those cases, the

Supreme Court recognized a duty of government to equalize access to

courts by assisting the poor. Those who are not poor have no need

for similar equalization. In the absence of legislation providing

otherwise, litigants must pay their own attorney's fees.

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54

L.Ed.2d 648 (1978).

Petitioner was not denied access to court; he is merely

required to pay for that access. The actual "right" petitioner

seeks to enforce is reimbursement of attorney's fees and expenses

for which there is no constitutional basis. Without a

constitutional basis, the right is not considered fundamental, and

the classification does not require strict scrutiny. We therefore

evaluate the constitutionality of the classifying provision under

the rational basis standard. To be constitutionally valid, the

classification need not be perfect or mathematically precise.

Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161-62,

25 L.Ed.2d 491 (1970). Under the rational basis test, disparate

treatment of similarly situated groups is not unlawful if a

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rational purpose underlies the disparate treatment and Congress has

not achieved that purpose in a patently arbitrary or irrational

way. United States R.R. Retirement Bd., 449 U.S. at 177, 101 S.Ct.

at 460-61; Belarmino v. Derwinski, 931 F.2d 1543 (Fed.Cir.1991).

Petitioner questions only the legislature's purpose.

The purpose of the EAJA is to eliminate for the average

person the financial disincentive to challenge unreasonable

government actions. Commissioner, INS v. Jean, 496 U.S. 154, 163,

110 S.Ct. 2316, 2321, 110 L.Ed.2d 134 (1990); 5 U.S.C. § 504

historical and statutory notes. Rather than restricting access,

the EAJA broadens access to courts. The net worth provision

specifies the outer financial limits of the individuals who the

legislature determined may forego challenging the government

because of the expense involved. This purpose is legitimate.

Petitioner, without authoritative support, argues that the

purpose of the net worth provision is to conserve government

financial resources, a purpose that is not legitimate. We are not

persuaded that conservation of resources is the purpose.

The net worth provision of the EAJA does not violate

petitioner's equal protection guarantees. The provision has a

rational basis and furthers a legitimate government interest, the

removal of an economic disincentive to challenge unjustified

actions of government agencies.

AFFIRMED.

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