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