Greg Reigel's Aero Legal Services

Timely Appeal Required For Equal Access to Justice Act (EAJA) Recovery of Attorney's Fees & Expenses
8/1/2003

The Equal Access to Justice Act (“EAJA”) allows a certificate holder (airman, mechanic, medical etc.) to apply for and receive an award of attorney’s fees and expenses under certain situations when the certificate holder is successful in defending against an FAA enforcement action.

EAJA awards are intended to deter the government from pursuing cases that are weak or tenuous. The statute's intended effect is not to prevent agencies from bringing cases, but rather to prompt agencies to more carefully evaluate cases before bringing them.

Specifically, the EAJA allows recovery when the certificate holder is a prevailing party in an NTSB appeal proceeding, the FAA’s position was substantially unjustified and the certificate holder actually incurred the attorney’s fees and expenses requested.

The FAA must show that: (1) the facts alleged had a reasonable basis in truth; (2) the asserted legal theory was reasonable; and (3) the legal theory is reasonably supported by the facts alleged. Reasonableness is based upon whether a reasonable person would feel that the FAA was substantially justified in proceeding with the case against the certificate holder.

This determination is made based upon the entire administrative record and the FAA’s failure to prevail on the merits does not automatically result in award of the requested attorney’s fees and expenses. Also, any award of fees is calculated from the point at which the FAA’s decision to proceed with its case against the certificate holder becomes substantially unjustified.

To apply for recovery of attorney’s fees and expenses under EAJA, the certificate holder must submit the application within 30 days from the date the NTSB’s disposition of the case becomes final. Final disposition occurs as of the date on which an un-appealed initial decision becomes administratively final.

As a general rule, any appeal of an initial decision must be filed within 10 days from the date of the NTSB administrative law judge’s decision. Since the last day of a designated period is included in the computation of a time limit, on that tenth day, the 30-day period for filing an EAJA application also begins to run. Thus, the final day to file the EAJA application is actually the 29th day after expiration of the 10-day appeal period.

Timely filing of the EAJA application is critical. If the application is not filed within the 30-day period, the FAA can ask the NTSB to reject the application. So, make sure you file within the 30-day period to ensure that the NTSB will consider your EAJA application and potentially grant you an award of your attorney’s fees and expenses.