Lee H. Allen v. NTSB ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1535
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Lee H. Allen, *
*
Petitioner, *
* Appeal from an Order of
v. * the National Transportation
* Safety Board.
National Transportation Safety Board; * [PUBLISHED]
Federal Aviation Administration, *
*
Respondents. *
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Submitted: September 24, 1998
Filed: November 5, 1998
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Before WOLLMAN, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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PER CURIAM.
Lee H. Allen petitions for review of the National Transportation Safety Board’s
(Board) award of attorney fees. We affirm.
In a consolidated action, the Federal Aviation Administration sought revocation
of Allen’s airline transport pilot certificate and the air carrier operating certificate of
Excaliber Aviation, Inc. (Excaliber). Allen and Excaliber were represented by the same
counsel. Following a hearing, the Board reduced the revocation of Allen’s pilot
certificate to a 180-day suspension and affirmed the revocation of Excaliber’s
certificate. Allen applied for attorney fees and expenses as a prevailing party pursuant
to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504(a)(1), (4) (1997). The
Board awarded Allen approximately fifteen percent of the amount claimed.
We will affirm an agency decision if it “is not ‘arbitrary, capricious, an abuse of
discretion, or otherwise not supported by law.’” See Reder v. Administrator of the
Fed. Aviation Admin., 116 F.3d 1261, 1263 (8th Cir. 1997) (quoting Trans-Allied
Audit Co. v. Interstate Commerce Comm’n, 33 F.3d 1024, 1030 (8th Cir. 1994)). We
can modify the Board’s decision only if it is not supported by substantial evidence. See
Smith v. National Transp. Safety Bd., 992 F.2d 849, 852 (8th Cir. 1993). Having
reviewed the record, we agree that the agency’s award is supported by substantial
evidence. The Board determined that Allen was partially successful in his defense of
the claims. A party who achieves limited success is entitled to recover a reasonable fee
commensurate with the results obtained. See Hensley v. Eckerhart, 461 U.S. 424, 440
(1983); Jenkins v. Missouri, 127 F.3d 709, 716 (8th Cir. 1997). In determining Allen’s
award, the Board requested a summary of attorney fees. Despite this request, Allen
failed to provide a breakdown of fees incurred in defending the claims brought against
him. In the absence of such evidence, the award of attorney fees cannot be said to be
unreasonable in light of the results obtained. See Hensley, 461 U.S. 437 n.12 (quoting
Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir. 1978)).
In Hensley, 461 U.S. at 435 n.11, the Court disapproved of applying a strict
mathematical formula when awarding attorney fees. Allen prevailed on approximately
fifteen percent of his claims, and the Board awarded him fifteen percent of his attorney
fees. Nothing in the record, however, leads us to believe that the Board based its
award solely upon a strict mathematical formula. Cf. Gumbhir v. Curators of the
University of Minnesota, Nos. 97-3066+, slip op. at 8-9 (8th Cir. Oct. 7, 1998)
(reasonable fee could not exceed the percentage of the damages recovered).
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Alternatively, Allen claims that he is entitled to attorney fees because the
demand by the agency was substantially in excess of the decision of the adjudicative
officer and was unreasonable when compared with the officer’s decision. 5 U.S.C. §
504(a)(4). The Board made a specific finding that the demand that Allen’s certificate
be revoked was not excessive and that the agency was substantially justified in seeking
such revocation. Because substantial evidence in the record as a whole supports this
finding, we will not disturb the Board’s decision.
The Board’s order is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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