Turner v. National Transportation Safety Board

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.

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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.

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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.

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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.

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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 §

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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).

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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.”

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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.

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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.

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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.