Everson v. Federal Aviation Administration

MEMORANDUM *** David Everson petitions for review of the final decision of the Administrator of the Federal Aviation Administration. The Administrator denied Everson’s application for attorney’s fees and expenses under the Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504 (a)(1) (1996 & Supp. 2006). The parties are familiar with the facts and procedural history. The Court denies Everson’s petition for review. The Administrator did not commit an abuse of discretion in denying Everson’s application for attorney’s fees and costs under the EAJA. See United States v. 2.6 Acres of Land, 251 F.3d 809 , 811 (9th Cir.2001); 5 U.S.C. § 706 (2)(A) (1996). The Administrator reasonably concluded that the FAA was substantially justified in its position that 14 C.F.R. §§ 135.251 (a) and 135.255(a) of the Federal Aviation Regulations applied to all Part 135 certificate holders. A reasonable person could have concluded that all Part 135 Certificate holders were required to implement the anti-drug and alcohol misuse-prevention programs. See Gutierrez v. Barnhart, 274 F.3d 1255, 1258-60 (9th Cir.2001). As a result, the Administrator did not commit an abuse of discretion in denying Ever-son’s application for attorney’s fees and costs under the EAJA. Accordingly, Ever-son’s petition for review is denied. DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by the Ninth Circuit Rule 36-3.