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FDIC Enforcement Decisions and Orders |
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FDIC denied application for attorney fees and other expenses filed under the Equal Access to Justice Act arising out of a consolidated civil money penalty and removal action. The FDIC found that the applicant failed to file adequate pleadings; failed to demonstrate that the agency's position in litigation was not "substantially justified;" and was not the prevailing party in the underlying litigation.
[.1] Equal Access To Justice ActStatutory and Regulatory Requirements Adequacy of Pleadings
[.2] DefinitionEqual Access To Justice Act"Substantial Justification"
[.3] Equal Access To Justice ActStatutory and Regulatory Requirements "Substantial Justification"
[.4] Equal Access To Justice ActStatutory and Regulatory Requirements Prevailing Party
In the Matter of:
This proceeding concerns an application for attorney fees and other expenses filed under the Equal Access to Justice Act ("EAJA"), 5 U.S.C. § 504, by Kenneth O. Arnold ("Respondent") arising out of a consolidated civil money penalty and removal action involving Republic Bank, Blanchard, Louisiana. Under the EAJA and the FDIC's implementing regulations at 12 C.F.R. § 308.114 et. seq., attorney fees and other expenses may be awarded upon a showing that (1) Respondent meets the statutory qualifications, (2) Respondent is the prevailing party, and (3) the agency's position was not substantially justified. 5 U.S.C. § 504.
ORDER
IT IS HEREBY ORDERED, for the reasons set forth in the Decision of the Board of Directors and in the recommended decision of the Administrative Law Judge incorporated therein, that Respondent's application for an award under the Equal Access to Justice Act, 5 U.S.C. § 504, is denied.
In the Matter of
MICHAEL O. MILLER, Administrative Law Judge: On October 24, 1988, following the September 27, 1988 issuance of an Order of the Board of the Federal Deposit Insurance Corporation (herein called FDIC) in FDIC-85-82e and FDIC-85-83k, Kenneth O. Arnold, (herein called Applicant, Respondent, or Arnold) filed an application for the payment of fees and other expenses pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504 (herein called EAJA). In that application, the Applicant claimed to be a prevailing party in those cases and submitted a statement of expenses totalling $387,907.06.
1. Adequacy of
As a waiver of soverign immunity, the Equal Access to Justice Act must be strictly construed. Columbia Manufacturing Corp., v. NLRB, 715 F.2d 1409, 1410 ((9th Cir. 1983). Thus, there must be compliance with both the statutory requirements and the those of regulations issued thereunder in order for an applicant to secure relief. Action on Smoking & Health v. CAB, 724 F.2d 211 (D.C. Cir. 1984): National Latino Media Coalition v. FCC, 816 F.2d 785 (D.C. Cir. 1987).6
[.1] However, timeliness was virtually the only area of Applicant's compliance with the statute and the FDIC's implementing regulations. Even assuming that Applicant's November 23, 1988 reply to the FDIC's answer were to be deemed a timely amendment of its application,8 it was inadequate for each of the following reasons:
[.2] A party prevailing in an adversary adjudication with an agency of the United States Government is entitled to fees and expenses unless the position of the agency was "substantially justified." The Supreme Court in Pierce v. Underwood, 108 S.Ct. 2541 (1988), has recently provided the definitive construction of "substantial justification."
[.4] Applicant contends that he was a prevailing part because the Board declined to issue an Order removing him from the banking industry or assess a further civil money penalty against him. This argument ignores the fact that the Board ruled against him on nearly every point and declined to issue either a removal order or a monetary penalty only in the interests of administrative efficiency. The Order would have supported
1. The Application was timely filed.
Based upon Proposed Conclusions of Law, Numbers 2, 3 and 4, above, it is recommended that the application for an award under the Equal Access to Justice Act be denied.10
I, Michael O. Miller, Administrative Law Judge, hereby certify that the following documents, consisting of: |
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Last Updated 6/6/2003 | legal@fdic.gov |