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United States Court of Appeals,
Fifth Circuit.
No. 95-60225
Summary Calendar.
Joseph Oran RICHARD, Petitioner,
v.
David R. HINSON, Administrator, FAA, Respondent.
Dec. 12, 1995.
Appeal from the final order of The National Transportation Safety
Board.
Before HIGGINBOTHAM, DUHÉ and EMILIO M. GARZA, Circuit Judges.
DUHÉ, Circuit Judge:
Petitioner argues that a provision of the Equal Access to
Justice Act violates the equal protection rights of individuals
with a net worth of over $2 million. He asks that we declare the
provision unconstitutional and award him fees and expenses. We
decline.
FACTS
A Federal Aviation Administration Administrator ordered the
emergency
revocation
of
petitioner's
airman
certificate.
Eventually, all charges were dismissed by the National
Transportation Safety Board (NTSB) and petitioner's certificate was
reinstated. Petitioner applied for attorney's fees and expenses
pursuant to the Equal Access to Justice Act (EAJA).1 Under the
15 U.S.C. § 504 (Supp.1995). Other portions of the EAJA not
implicated here are codified at 28 U.S.C. § 2412 (1994) and 15
U.S.C. § 634b (Supp.1995).
1

EAJA, individuals with a net worth less than $2 million are
entitled to reimbursement of fees and expenses if the government
agency cannot show substantial justification for its position
against that individual. 5 U.S.C. §§ 504(a)(1), 504(b)(1)(B)
(Supp.1995). Petitioner's application for fees and expenses was
denied because his net worth exceeds $2 million.2
DISCUSSION
We have jurisdiction under 49 U.S.C. § 1153 (1995) and 5
U.S.C. § 504(c)(2) (Supp.1995), which grant federal courts of
appeals jurisdiction over appeals from final orders of the NTSB.
We review the constitutionality of the EAJA net worth provision de
novo. United States v. Guajardo, 950 F.2d 203 (5th Cir.1991),
cert. denied, 503 U.S. 1009, 112 S.Ct. 1773, 118 L.Ed.2d 432
(1992). See also Stewart v. Parish of Jefferson, 951 F.2d 681, 683
(5th Cir.1992).
Although petitioner asserts that his Fourteenth Amendment
equal protection rights were violated, his claims actually arise
under the Fifth Amendment which protects parties from unjustifiable
discriminatory applications of law. Adarand Constructors, Inc. v.
Pena, --- U.S. ----, ---- - ----, 115 S.Ct. 2097, 2107-08, 132
L.Ed.2d 158 (1995); Torres v. Shalala, 48 F.3d 887 (5th Cir.1995).
The Fourteenth Amendment protects against actions by states but
here, the federal government is the subject of petitioner's
2The NTSB made no finding regarding the substantial
justification requirement. Nevertheless, petitioner argues that
the FAA had no justification for revoking the certificate.
Because we uphold the net worth provision and find it
dispositive, we do not address this argument.
2

complaints making the Fourteenth Amendment inapplicable. We employ
the same test to evaluate alleged equal protection violations under
the Fifth Amendment as we do under the Fourteenth Amendment.
Adarand, --- U.S. at ----, 115 S.Ct. at 2107; Torres, 48 F.3d at
890-91.
In evaluating an equal protection claim, we must first
determine the proper standard under which to review the
classification and then analyze the purpose of the legislation to
determine whether it satisfies the standard. United States R.R.
Retirement Bd. v. Fritz, 449 U.S. 166, 174, 101 S.Ct. 453, 459, 66
L.Ed.2d 368 (1980); Chrysler Corp. v. Texas Motor Vehicle Comm'n,
755 F.2d 1192 (5th Cir.1985). Strict scrutiny is required if the
legislative classification operates to the disadvantage of some
suspect class or impinges upon a fundamental right explicitly or
implicitly protected by the Constitution. San Antonio Indep. Sch.
Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16
(1973). Otherwise, the legislative classification need only bear
a rational relation to a legitimate governmental purpose. Torres,
48 F.3d at 891.
The EAJA provision classifies according to wealth which alone
is not a suspect criterion. San Antonio Indep. Sch. Dist., 411
U.S. at 28, 93 S.Ct. at 1294; Chrysler Corp., 755 F.2d at 1203.
Therefore, we review the provision under strict scrutiny only if it
impinges on a fundamental right. A fundamental right for equal
protection purposes is one that is explicitly or implicitly
protected by the Constitution. San Antonio Indep. Sch. Dist., 411
3

U.S. at 29, 93 S.Ct. at 1294-95.
Petitioner argues that the net worth provision violates one
of his fundamental rights, his First Amendment right of access to
courts. In support, petitioner relies on Douglas v. California,
372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) and Griffin v.
Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) where
indigent criminal defendants could not be heard in court because
they could not pay filing and transcript fees. In those cases, the
Supreme Court recognized a duty of government to equalize access to
courts by assisting the poor. Those who are not poor have no need
for similar equalization. In the absence of legislation providing
otherwise, litigants must pay their own attorney's fees.
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54
L.Ed.2d 648 (1978).
Petitioner was not denied access to court; he is merely
required to pay for that access. The actual "right" petitioner
seeks to enforce is reimbursement of attorney's fees and expenses
for which there is no constitutional basis. Without a
constitutional basis, the right is not considered fundamental, and
the classification does not require strict scrutiny. We therefore
evaluate the constitutionality of the classifying provision under
the rational basis standard. To be constitutionally valid, the
classification need not be perfect or mathematically precise.
Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161-62,
25 L.Ed.2d 491 (1970). Under the rational basis test, disparate
treatment of similarly situated groups is not unlawful if a
4

rational purpose underlies the disparate treatment and Congress has
not achieved that purpose in a patently arbitrary or irrational
way. United States R.R. Retirement Bd., 449 U.S. at 177, 101 S.Ct.
at 460-61; Belarmino v. Derwinski, 931 F.2d 1543 (Fed.Cir.1991).
Petitioner questions only the legislature's purpose.
The purpose of the EAJA is to eliminate for the average
person the financial disincentive to challenge unreasonable
government actions. Commissioner, INS v. Jean, 496 U.S. 154, 163,
110 S.Ct. 2316, 2321, 110 L.Ed.2d 134 (1990); 5 U.S.C. § 504
historical and statutory notes. Rather than restricting access,
the EAJA broadens access to courts. The net worth provision
specifies the outer financial limits of the individuals who the
legislature determined may forego challenging the government
because of the expense involved. This purpose is legitimate.
Petitioner, without authoritative support, argues that the
purpose of the net worth provision is to conserve government
financial resources, a purpose that is not legitimate. We are not
persuaded that conservation of resources is the purpose.
The net worth provision of the EAJA does not violate
petitioner's equal protection guarantees. The provision has a
rational basis and furthers a legitimate government interest, the
removal of an economic disincentive to challenge unjustified
actions of government agencies.
AFFIRMED.

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