22:0966(98)CO - AFGE Local 495 (VA Medical Center, Tucson, AZ) and Linda S. Moore -- 1986 FLRAdec CO
[ v22 p966 ]
22:0966(98)CO
The decision of the Authority follows:
22 FLRA No. 98
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 495, AFL-CIO
(VETERANS ADMINISTRATION MEDICAL
CENTER, TUCSON, ARIZONA)
Respondent
and
LINDA S. MOORE, AN INDIVIDUAL
Charging Party
Case No. 8-CO-20006-2
DECISION AND ORDER ON APPLICATION FOR ATTORNEY FEES
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel to the attached Decision of the
Administrative Law Judge. The Respondent Union has filed an opposition.
The dispute concerns whether the Union should be awarded attorney fees
and expenses under part 2430 of the Authority's Rules and Regulations (5
CFR part 2430), which were issued to implement the Equal Access to
Justice Act (EAJA) of 1980, Pub. L. No. 96-481, 94 Stat. 2325, codified
at 5 U.S.C. 504 (Supp. V 1981). The attorney fees requested were
incurred by the Union in defending against an unfair labor practice
complaint initiated by the General Counsel which alleged that the Union
had violated section 7116(b)(4) of the Federal Service Labor-Management
Relations Statute (the Statute). This case requires the Authority to
articulate the standards to be applied in determining whether to grant
or deny attorney fees under part 2430 and in determining the amount of
fees to be granted where fees are found to be warranted.
II. Background: The Judge's Decisions Dismissing the
Complaint and Awarding Attorney Fees
The Union's application for fees under 5 CFR part 2430 arose out of
the General Counsel's prosecution of a complaint against the Union. The
complaint alleged that in imposing discipline against the Charging
Party, Linda S. Moore, the Union had discriminated against her based on
her marital status in violation of section 7116(b)(4) of the Statute.
The Judge issued his Decision in that case on July 22, 1983,
recommending that the complaint be dismissed.
The Judge found that the Union's action involved discipline under its
constitution and bylaws and that, as such, the dispute was within the
initial or exclusive jurisdiction of the Assistant Secretary of Labor
for Labor-Management Relations under section 7120 of the Statute. In
the alternative, assuming that the Authority had jurisdiction over the
matter, he concluded that the complaint should be dismissed because the
General Counsel had failed to present evidence to establish a violation
of the Statute.
No exceptions were filed to the Judge's Decision, and on August 31,
1983, the Authority issued an Order as provided under section 2423.29 of
its Rules and Regulations, 5 CFR 2423.29, adopting such Decision as the
resolution of the case and dismissing the complaint. FLRA
Administrative Law Judge Decisions Report No. 30 (Sept. 2, 1983).
The Union then filed its application for attorney fees and expenses
under 5 CFR part 2430, and after submissions by the General Counsel and
the Union, on May 4, 1984, the Judge issued the attached Decision in
which he recommended that the application be granted.
The Judge found that the Union was eligible to apply for an award of
attorney fees and expenses under part 2430 and that its application
fulfilled the procedural requirements of such regulations. He stated
that under section 2430.3 the General Counsel bears the burden of
showing that the application should not be granted, and after
considering the record in the underlying case and the General Counsel's
arguments on the merits of the attorney fees application, he concluded
that the General Counsel had not met this burden. Accordingly, he
recommended that the application be granted and that $5,658.02 be
awarded for attorney fees.
III. Positions of the General Counsel and the Union
The General Counsel's exceptions are limited to the merits of the
application, and essentially argue that the Judge erred in concluding
that the General Counsel failed to meet the burden of showing that his
action in the underlying proceeding was reasonable in law and fact. The
General Counsel further argues that special circumstances existed in the
underlying case which would make an award unjust. The Union argues
generally in support of the Judge's Decision on both of the above
matters.
IV. Discussion and Analysis
Because this is the first instance in which the Authority must decide
the merits of an application under 5 CFR part 2430, we first discuss the
requirements of the EAJA and part 2430 and then apply these provisions
to the instant case.
A. The Equal Access to Justice Act
Congress' purpose in enacting the 1980 EAJA was to reduce the extent
to which individuals and organizations were discouraged from seeking
review of, or defending against, unreasonable government action because
of the expense of vindicating their rights. Thus, the EAJA provided for
compensating for certain of these costs in certain court and
administrative proceedings. Pub. L. No. 96-481, sec. 202, 94 Stat.
2325.
For administrative proceedings, section 203 of the EAJA, codified at
5 U.S.C. 504, provided that Federal agencies or departments conducting
"adversary adjudications" within the meaning of 5 U.S.C. Section 554
(the Administrative Procedures Act) became liable for litigation
expenses of a party to the case, other than the United States (for
example, another Federal agency or department), if:
(1) that party was a "prevailing party" in the case;
(2) the party met certain eligibility requirements; and
(3) it was determined that the government had not shown that:
(a) its action, represented by the position of the agency in
the case, was "substantially justified," or
(b) "special circumstances made an award unjust," or
(c) the party applying for an award of costs had engaged in
conduct which unduly or unreasonably protracted the final
resolution of the case.
Pub. L. No. 96-481, sec. 203, 94 Stat. 2325; 5 U.S.C. Section 504
(Supp. V 1981).
(1) Prevailing Party
Although "prevailing party" was not defined in the EAJA, its
legislative history makes clear that it included (a) parties who obtain
favorable settlements, in situations where the agency or department that
initiated the matter seeks dismissal of the case, (b) parties who obtain
partial victories, and (c) parties who totally prevail on the merits of
their case after a hearing. H.R. Rep. No. 1418, 96th Cong., 2d Sess. 11
(1980), reprinted in 1980 U.S. Code Cong. & Admin. News 4990.
(2) Eligibility Requirements
Prevailing parties eligible to receive awards of costs in such
proceedings were specified as including individuals and organizations,
other than a Federal agency or department, such as partnerships,
corporations, associations, and labor unions, but not: (a) individuals
having a net worth exceeding $1 million; and (b) organizations having a
net worth exceeding $5 million, unless the organization is exempt from
taxation under certain provisions of the Internal Revenue Code and has
less than 500 employees. 94 Stat. 2326; 5 U.S.C. 504(b)(3)(B).
(3) Definition of Terms
When an application is filed by an eligible prevailing party, the
EAJA provided that the application shall be granted unless the agency
which initiated the proceeding shows that its position was
"substantially justified," that the applying party unduly protracted the
proceeding concerning which it is applying for an award, or that
"special circumstances" exist. Although the phrases "substantially
justified," and "special circumstances" were not specifically defined in
the EAJA, the Senate and House Committees recommending the legislation
provided guidance in identical explanations.
Thus, Congress did not intend that the government would have to show
that it won the case, or that its decision to initiate the case was
based on a substantial likelihood that it would win, in order to avoid
paying the applicant's attorney fees. The intent was to establish a
test of reasonableness, of whether the government could show that its
position in the matter had a "reasonable basis in law and fact," a test
somewhere between the one applied to plaintiffs in Civil Rights Act
cases and the one applied for defendants under the "American rule." H.R.
Rep. No. 1418, 96th Cong., 2d Sess. 10-11 (1980), reprinted in 1980 U.S.
Code Cong. & Admin. News 4990. Under the Civil Rights Act, plaintiffs
ordinarily recover their attorney fees unless special circumstances
would render an award unjust. Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400 (1968). Under the "American rule," defendants may recover
their costs only where it is found that the plaintiff's action was
frivolous, unreasonable, groundless or without foundation.
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 420-21 (1978). See
also Enerhaul v. NLRB, 710 F.2d 748 (11th Cir. 1983) and Spencer v.
NLRB, 712 F.2d 539, 558 n.67 and accompanying text (D.C. Cir. 1983)
("substantially justified" was intended to be a test which is slightly
more stringent than one of reasonableness).
As explained by the United States Court of Appeals for the Third,
Eighth, and Tenth Circuits, under this test of reasonableness the
government must show that there is a reasonable basis in truth for the
facts alleged, that there exists a reasonable basis in law for the
theory of the case, and that the facts alleged will reasonably support
the legal theory advanced. Iowa Express Distribution, Inc. v. NLRB, 739
F.2d 1305, 1308 (8th Cir. 1984); United States v. 2,116 Boxes of Boned
Beef, 726 F.2d 1481, 1487 (10th Cir. 1984); Dougherty v. Lehman, 711
F.2d 555, 564 (3d Cir. 1983).
In applying the test in unfair labor practice cases within its
jurisdiction, the National Labor Relations Board (NLRB) has stated that
the question of whether its General Counsel was substantially justified
should not be decided simply on the basis of whether the General Counsel
had been able to prove a prima facie case. Iowa Parcel Service, Inc.,
266 NLRB 392 (1983), affirmed Iowa Express Distribution v. NLRB, 739
F.2d 1305 (8th Cir. 1984); DeBolt Transfer, Inc., 271 NLRB 299 (1984)
(where the NLRB adopted the Judge's decision that its General Counsel
was not substantially justified even though a prima facie case had been
established). To the same effect, see Board Avenue Laundry and
Tailoring v. United States, 693 F.2d 1387, 1391 (since the question of
reasonableness depends on all the pertinent facts of the case, fixed
rules cannot be established for determining the issue).
The NLRB has also stated, however, that it will conclude that its
General Counsel was not substantially justified if there is a failure to
present evidence which, if credited by a factfinder, would constitute a
prima facie case. Derickson Company, Inc., 270 NLRB 516, 518 (1984);
SME Cement, Inc., 267 NLRB 763, n.1 (1983).
We find that this rule is appropriate as a threshold test in unfair
labor practice proceedings under the Statute. A "prima facie" case is
one in which the evidence presented would suffice to show that there is
a basis for the theory of the case if such evidence is presumed to be
true and the evidence presented by the opposing party is disregarded.
Black's Law Dictionary 1353 (rev. 4th ed. 1986); Webster's Third New
International Dictionary, Unabridged 1800 (1976). A case which did not
reach the NLRB's standard would be groundless or "meritless" and the
equivalent of or very close to a case under which a defendant would
qualify for an award of fees under the "American rule." Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).
"Special circumstances" was intended to be a "safety valve" to ensure
that awards would not be made in conflict with equitable considerations
and to ensure that the government was not deterred from advancing in
good faith the novel but credible extensions and interpretations of the
law that often underlie vigorous enforcement efforts.
In addition to setting out who may apply for such awards under agency
proceedings and the tests to be applied in determining whether an award
of costs should be made, the EAJA set forth procedural requirements for
applications; limitations on the types and amounts of the costs to be
reimbursed; and a mandate, applicable to the Authority, that agencies
issue regulations for its implementation. Finally, the EAJA contained a
"sunset" clause which provided by its terms that it would expire as of
October 1, 1984, with the proviso that it would continue to apply until
the final resolution of any pending case which had been initiated prior
to October 1, 1984. On August 5, 1985, the EAJA was renewed and made
permanent. Pub. L. No. 99-80, 99 Stat. 183 (1985). See Part C, infra.
B. Authority Proceedings under the EAJA; 5 CFR part 2430
The Authority issued regulations in 1981, codified at 5 CFR part
2430, which provide for the submission of EAJA applications for fees and
expenses from parties to its proceedings and for the consideration of
such applications.
These regulations reiterate the purpose of providing for awards of
costs to eligible individuals and entities that prevail in agency
adversary adjudications unless the agency's position in the case was
substantially justified or special circumstances exist to make an award
unjust. 5 CFR 2430.1. The regulations provide for awards in
conjunction with unfair labor practice proceedings under the Statute
pending on complaints against labor organizations between October 1,
1981, and September 30, 1984, including proceedings pending on September
30, 1984. 5 CFR 2430.2(a). /1/
A labor organization/respondent in an unfair labor practice
proceeding may qualify for an award if it prevails in the case, or in a
significant and discrete portion of the case, on the merits. It also
must meet the EAJA eligibility requirements of net worth and number of
employees. 5 CFR 2430.2(b). If these requirements are met, the labor
organization may receive an award unless the General Counsel can show
that his position in initiating the case was "reasonable in law and
fact." 5 CFR 2430.3(a). Further, an award will be reduced or denied if
the General Counsel shows that the applicant has unduly or unreasonably
protracted the proceeding, or that special circumstances make an award
unjust. 5 CFR 2430.3(b).
The EAJA application is referred where possible to the same
Administrative Law Judge who presided over the proceeding for which the
award is sought. 5 CFR 2430.7. The Judge is required to make specific
findings and conclusions on all the requirements in 5 CFR part 2430. 5
CFR 2430.12. The Judge's decision and the entire record on which it is
based is then transmitted to the Authority and the parties may file
exceptions to the Judge's decision in the manner set forth in sections
2423.26(c), 2423.27 and 2423.28 of the Authority's Rules and
Regulations. 5 CFR 2430.13.
C. The 1985 Extension of the EAJA
The Equal Access to Justice Act was renewed and made permanent by the
Equal Access to Justice Act of 1985, Pub. L. No. 99-80, 99 Stat. 183,
with clarifications and amendments. As explained by the House Committee
which reported the legislation to the House of Representatives, the
amendments to the law were intended to apply to matters pending on or
commenced after August 5, 1985, the date of the new law's enactment.
The clarifications to the prior law were intended to be applicable to
these matters and to matters which were pending on, or commenced on or
after October 1, 1981, the effective date of the prior law. H.R. Rep.
No. 120, 99th Cong., 1st Sess. 11 (1985), reprinted in 1985 U.S. Code
Cong. & Admin. News 183.
We have reviewed the new law and the House Committee's report in
connection with the Authority's proceedings and have concluded that the
clarifications which were intended to be applicable to matters pending
under the 1980 EAJA prior to August 5, 1985, id. at 11-17, do not affect
the result to be reached on the application for attorney fees in this
case. However, we urge parties who may wish to file applications under
the EAJA in the future to be attentive to the contents of the EAJA in
its new form.
D. The Union's Application
1. Eligibility: The Judge found, without dispute by the General
Counsel, that the Union is a labor organization within the meaning of 5
CFR part 2430, that it timely filed its application within 30 days of
the final order in the underlying case, and that it was the prevailing
party in that case. He also found that the Union meets the other
eligibility requirements of 5 CFR part 2430 and that the content of its
application complies with the Authority's Rules and Regulations. These
findings are correct and are adopted.
2. Whather the General Counsel's position in the underlying case was
reasonable: In deciding whether the General Counsel had met the test of
reasonableness in the underlying case, the Judge reexamined his two key
conclusions in the case. First he reexamined his conclusion that the
case should be dismissed for lack of jurisdiction, based on the
Authority's prior decision in American Federation of Government
Employees, Local 2000, AFL-CIO, 8 FLRA 718 (1982), and considered
whether the General Counsel's position in the case was reasonable in the
face of that conclusion. He reaffirmed the jurisdictional result and
decided that the General Counsel should have known that this would be
the result when the case was initiated. On this reasoning he decided
that the General Counsel's action in prosecuting the case was not
reasonable "in law." Second, the Judge reexamined his alternative
finding in the underlying case that the General Counsel's action in
prosecuting the case was not reasonable because the General Counsel did
not produce evidence to prove a prima facie case.
First, with respect to the reasonableness of the General Counsel's
jurisdictional argument, we disagree with the Judge and find it
reasonable. However, with respect to the second issue, we agree with
the Judge and conclude that the General Counsel was not reasonable in
prosecuting the case without sufficient evidence to make a prima facie
case. Moreover, as discussed in part D.3, we accept for purposes of our
analysis the reasonableness of the General Counsel's legal theory in
this case but we make no judgment as to the validity of that theory.
Initially, we disagree with the Judge's suggestion, following n.9 of
his decision, that the reasonableness of the General Counsel's position
can be discerned from the fact that no exceptions were filed in the
underlying case. The Authority's Rules and Regulations state that when
no exceptions are filed to a Judge's decision, the Authority will issue
an order which adopts that decision as the result of that case, with the
understanding that this adoption does not mean that the reasoning or the
conclusions of the Judge shall have precedential significance for any
other case. 5 CFR 2423.29(a). This being true, the General Counsel or
any party can decide not to file exceptions for any reason. It cannot
be concluded that a failure to file exceptions means that the party
having the opportunity but failing to do so knew that its position was
wrong.
As stated above, we disagree with the way in which the Judge applied
Local 2000, particularly his reasoning that Local 2000 was applicable to
the underlying case because both "ar(ose) out of an internal union
disciplinary proceeding alleging violation of the union's constitution
and bylaws." The Authority in Local 2000 explicitly stated that the only
allegation in the complaint in that case was that the union had failed
to comply with its constitution and bylaws. This is not what the
complaint against the Respondent Union alleged in the underlying case
here. Rather, it was alleged that the Union had discriminated against
the Charging Party, Linda Moore, based on her marital status in
violation of section 7116(b)(4) of the Statute.
Because it is exclusively the Authority, and not the Assistant
Secretary of Labor, which has jurisdiction over alleged violations of
section 7116 of the Statute, cases presenting such statutory questions
must be presented to the Authority for decision, not to the Assistant
Secretary. See American Federation of Government Employees, Local 1738,
AFL-CIO, 19 FLRA No. 66 (1985), petition for review filed sub nom.
American Federation of Government Employees, Local 1738 v. FLRA, No.
85-1609 (D.C. Cir. Sept. 25, 1985). Issues which are within the
exclusive jurisdiction of the Assistant Secretary under section 7120 of
the Statute should be presented separately to the Assistant Secretary
under the procedures set forth in 5 CFR 2428. We conclude therefore
that the Judge was incorrect in concluding the General Counsel was not
reasonable in prosecuting the case because the General Counsel should
have concluded that the Authority lacks jurisdiction in this case.
However, we agree with the Judge that the General Counsel was not
reasonable in prosecuting a case for which the General Counsel did not
present evidence which would prove a prima facie case. In seeking to
show that the Union had discrminated against the Charging Party, Linda
Moore, the General Counsel asserted that Jimmy Moore, her spouse, had
acted against the Union's interests and that the Union had disciplined
Linda because Linda and Jimmy were married. Even assuming that this
would amount to discrimination based on marital status under section
7116(b)(4) of the Statute, it is readily apparent that the General
Counsel did not present evidence to support such a claim.
The evidence presented by the General Counsel shows the following:
Jimmy and Linda Moore were elected officers of the Union in 1981, and
both had become dissatisfied with the Union leadership. Jimmy initiated
meetings with a representative of another union to discuss how he might
go about circulating a petition among employees to require a vote to
oust the incumbent Union. The extent of Linda's participation at these
meetings is not certain. Jimmy did circulate a petition, which was
signed by Linda. Eventually, both Jimmy and Linda resigned from the
Union, and copies of their letters of resignation, criticizing the
union, were posted on the Union's bulletin board. The Union saw the
posting of Jimmy's and Linda's letters, learned of Jimmy's activity on
behalf of the rival labor organization, and decided to initiate
disciplinary action against Jimmy and Linda.
Linda was notified that a hearing was to be conduced by a trial
committee on a specified date. She did not attend. The chairperson of
the committee then, by letter, asked Linda for certain information. She
refused to supply any. A second request for information was made by
letter, and Linda was also informed that the trial committee had not yet
decided her case and that another hearing would be held on a specified
date. Linda refused to give any information and did not attend the
hearing. She then filed the unfair labor practice charge which was the
basis for the complaint in this case, alleging that the Union had
discriminated against her on the basis of her marital status, in
violation of section 7116(b)(4) of the Statute. The Union expelled her
(adjudged her ineligible for membership) for a period of four years.
Based on our review of this presentation of evidence, it shows that
the Union was not without a reasonable basis for pursuing disciplinary
action against Linda for participating in activity which was detrimental
to the Union. For the General Counsel to have succeeded in its theory
of the case, the General Counsel needed to either (1) present direct
evidence showing that one of the reasons the Union pursued discipline
against Linda was because she was married to Jimmy or (2) present
evidence that it was so clearly unreasonable for the Union to have
pursued discipline against Linda that the trier of fact could
permissibly infer that the reason was because Linda was married to
Jimmy. The General Counsel did neither.
In view of the evidence presented, it should be apparent that the
General Counsel's case was appropriate for summary judgement in favor of
the Respondent Union as soon as the General Counsel's case was
completed. The General Counsel was unable to show that the facts
alleged would reasonably support the legal theory advanced for the case.
United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1487 (10th
Cir. 1984). It was not able to present evidence which, if credited,
would constitute a prima facie case. Derickson Company, Inc., 270 NLRB
516, 518 (1984); SME Cement, Inc., 267 NLRB 763, n.1 (1983).
Accordingly, on this basis we decide the General Counsel was not
reasonable in prosecuting the case.
3. Whether special circumstances exist which would make an award
unjust: In deciding that special circumstances did not exist in the
case to justify denial of the application, the Judge relied upon his
jurisdictional conclusions. As explained above, his dismissal of the
complaint for lack of jurisdiction was erroneous. He also relied on his
evaluation of Linda's conduct in the proceedings. While we do not rely
on any assessment of her conduct, we do agree with his ultimate
conclusion that the Gneeral Counsel has not been able to show that
special circumstances exist which would justify denial of the Union's
application for an award.
We agree with the General Counsel that the case was novel because it
was the first to allege unlawful discrimination based on marital status
under section 7116(b)(4) of the Statute and because it sought to find
that this proscription against discrimination based on marital status
encompasses discrimination against someone because of the identity of
the person's spouse.
We also strongly agree that there is a need for vigorous enforcement
of the law in Federal labor relations and that the General Counsel must
not be deterred from advancing novel or untested legal theories and
cases in such an effort. Indeed, the "special circumstances" proviso of
the EAJA was intended to prevent deterrence.
It remains, however, that while the underlying case was "novel" in
the above respects, the General Counsel is not being penalized by an
adverse EAJA award in this case because of its pursuit of a novel
theory. Rather, the EAJA award is based upon the conclusion that the
General Counsel has failed to present a prima facie case of
discrimination under the General Counsel's own theory of what would
constitute prohibited discrimination.
We conclude that the Union should not have been forced into the
expense of defending against the General Counsel's action. Further,
there is no suggestion in this case that the EAJA applicant unduly or
unreasonably protracted the proceeding. This is precisely the type of
case to which the EAJA was intended to apply.
E. Allowable fees and expenses
The Union's application provides documentation for the amount of
attorney fees and expenses requested as required in 5 CFR 2430.4 and
2430.6. The billing rates of $75.00 per hour for attorney fees and
$35.00 per hour for paralegal services have been justified as being
customary for the services rendered and as being comparable to the
prevailing rate in the community in which the services were rendered.
We also find that, with one exception discussed below, the time which
was billed for the Union's defense in the underlying case, the
presentation of the application, the Union's opposition to the General
Counsel's exceptions to the attached Decision, the Union's Supplementary
Motion citing authorities, and the associated expenses, are reasonable
in relation to the matters which have been presented for decision. See
Tyler Business Services v. NLRB, 695 F.2d 73, 77 (4th Cir. 1982) and
DeBolt Transfer, Inc., 271 NLRB 299, 300 (1984), where it was explained
that it would be inconsistent with the EAJA to deny a request for fees
and expenses which arises from the need to process an EAJA application.
The application includes a request for $34.91 for the expense of a
dinner conference. We understand that conferences with clients and
potential witnesses are necessary, particularly in planning for a
hearing. However, where such conferences are necessary, we believe that
the billing should be for the attorney's time. Billings for the
expenses of meals have great potential for abuse and will not be
reimbursed.
As provided in 5 CFR 2430.4 and based on the above considerations, we
conclude that the application should be granted in the amount of
$6,194.40. This amount represents the amount recommended by the Judge
($5,658.02), pluse the fees and expenses associated with the processing
of the matter before the Authority ($571.29), less the amount claimed
for a dinner conference ($34.91).
V. Conclusion
The Union was the prevailing party in the underlying case and it
meets the other eligibility requirements for an award of attorney fees
and expenses set forth in 5 CFR part 2430. The General Counsel has not
been able to show that his position in initiating that proceeding was
reasonable in fact or that special circumstances existed in that
proceeding which would make an award unjust as provided in 5 CFR 2430.5.
The application is granted, as adjusted above, in the amount of
$6,194.40, and payment shall be made in the name of the Union, the
American Federation of Government Employees, Local 495, AFL-CIO. To
obtain payment, the applicant must follow the procedures set forth in 5
CFR 2430.14, which provides:
Section 2430.14 Payment of award.
To obtain payment of an award made by the Authority the
applicant shall submit to the Executive Director of the Authority
a copy of the Authority's final decision granting the award,
accompanied by a statement that the applicant will not seek court
review of the decision. The amount awarded will then be paid
unless judicial review of the award, or of the underlying
decision, has been sought by the applicant or any other party to
the proceeding.
ORDER
As provided in 5 CFR 2430.13, IT IS ORDERED that the application for
attorney fees and expenses be, and it hereby is, granted, in the amount
of $6,194.40.
Issued, Washington, D.C., July 31, 1986.
/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 8-CO-20006-2
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 495, AFL-CIO (VETERANS ADMINISTRATION
MEDICAL CENTER, TUCSON, ARIZONA)
Respondent
and
LINDA S. MOORE, AN INDIVIDUAL
Charging Party
E. A. Jones, Esq.
Gerald M. Cole, Esq.
For the General Counsel
Stanley Lubin, Esq.
For the Respondent
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION AND ORDER
GRANTING APPLICATION FOR AWARD OF FEES AND EXPENSES
This proceeding under the Equal Access to Justice Act (herein EAJA),
5 U.S.C. Section 504, 94 Stat. 2325 (1980), was instituted by the filing
of an Application For An Award of Attorneys' Fees and Expenses (herein
the application) by Stanley Lubin, Esq. of McKendree & Lubin, Phoenix,
Arizona, on behalf of American Federation of Government Employees, Local
495, herein referred to as AFGE Local 495, Applicant, or Respondent.
The application was filed pursuant to Part 2430, Sections 2430.1 through
2430.14, inclusive, of the Rules and Regulations of the Federal Labor
Relations Authority. In accordance with the requirements of section
2430.7, the application was referred to me for consideration.
On October 26, Counsel for the General Counsel filed a motion to
dismiss the application, contending that the action of the General
Counsel in initiating this proceeding, i.e., the issuance of a complaint
and notice of hearing, was reasonable in law and fact. /2/ Since the
issue raised by the General Counsel's motion is the same issue I would
have to decide and include in a decision prepared pursuant to Section
2430.12(a), I believed it inappropriate to rule on such issue until I
had received the General Counsel's answer and the Applicant's reply
thereto. Accordingly, I so advised the parties in my order of December
29, 1983 denying the motion to dismiss.
Thereafter, the General Counsel filed a timely answer which raised no
issues not previously raised in the motion to dismiss. /3/ The
Applicant filed no reply. Neither party has requested an evidentiary
hearing and such hearing appears unnecessary as no factual issues were
raised concerning Respondent's application. Upon consideration of the
entire record, /4/ I make the following findings and conclusions.
Discussion and Analysis
A. Statutory and Regulatory Background -- General Counsel
has Burden of Proving Applicant's Ineligibility.
The Equal Access to Justice Act, which became effective October 1,
1981, permits prevailing parties to obtain awards of attorney fees and
other expenses against the United States in certain administrative
proceedings and judicial actions. The EAJA accomplishes this end by
creating a new section 504 to Title 5 of the United States Code and by
amending 28 U.S.C. 2412. The first of these two provisions, the new
section 504, concerns the award of fees and expenses in certain
administrative proceedings such as the one involved herein. The latter
provision, the amended section 2412, concerns the award of fees and
expenses in certain court cases.
The "findings and purpose" of the EAJA are set forth in Section 202
thereof, as follows:
Sec. 202. (a) The Congress finds that certain individuals,
partnerships, corporations, and labor and other organizations may
be deterred from seeking review of, or defending against,
unreasonable governmental action because of the expense involved
in securing the vindication of their rights in civil actions and
in administrative proceedings.
(b) The Congress further finds that because of the greater
resources and expertise of the United States the standard for an
award of fees against the United States should be different from
the standard governing an award against a private litigant, in
certain situations.
(c) It is the purpose of this title --
(1) to diminish the deterrent effect of seeking review of, or
defending against, governmental action by providing in specified
situations an award of attorney fees, expert witness fees, and
other costs against the United States; and
(2) to insure the applicability in actions by or against the
United States of the common law and statutory exceptions to the
"American rule" respecting the award of attorney fees.
The Authority's implementation of the EAJA is set forth in Part 2430
of its Rules and Regulations which, in pertinent part, provides as
follows:
Section 2430.3 Standards for awards.
(a) An eligible applicant may receive an award for fees and
expenses incurred in connection with a proceeding, or in a
significant and discrete portion of the proceeding, unless the
position of the General Counsel over which the applicant has
prevailed was substantially justified. The burden of proof that
an award should not be made to an eligible applicant is on the
General Counsel, who may avoid an award by showing that its
position in initiating the proceeding was reasonable in law and
fact.
(b) An award will be reduced or denied if the applicant has
unduly or unreasonably protracted (sic) the proceeding or if
special circumstances make the award sought unjust. /5/
Therefore, the General Counsel has the burden of proving in this
fee-adjudication proceeding before me that its position in initiating
the unfair labor practive proceeding was reasonable both in law and
fact, /6/ or that special circumstances exist which make the award
unjust.
B. The Unfair Labor Practice Proceeding: A Summary of My
Findings and Conclusions.
1. On June 4, 1981, Jimmy Moore resigned his position as First Vice
President of AFGE Local 495. Between June 4 and June 12 he met several
times with Dick Coffey, national representative of a rival union,
National Federation of Federal Employees. On two occasions his wife
Linda Moore was with him.
2. On June 11, 1981 Linda Moore submitted her letter of resignation
as Second Vice President of AFGE Local 495. Her letter was highly
critical of the Union and its President, Evelyn Greeson. She gave a
copy of her letter to her husband, Jimmy Moore.
3. On June 13, Jimmy Moore circulated an election petition which
both had signed. A week later he returned the petition to a
representative of the National Federation of Federal Employees. During
this same period, Jimmy and Linda Moore's resignation letters were found
by AFGE Local 495 officers on bulletin boards at the VA Medical Center.
Linda Moore was out of the state during this period in which the
petition was being circulated.
4. By letter dated July 28, the Union notified Linda Moore that
charges had been preferred against her which could lead to expulsion.
Hearings were held but Linda did not appear to testify, although she had
notice of the hearings.
5. On December 21, Linda Moore filed this unfair labor practice
charge alleging she had been expelled because of her marital status. In
truth, she was not actually expelled until a vote of the membership on
January 4, 1982. She appealed this decision. It appears from the
application (p. 2) herein that the charge was dismissed by the Regional
Director and later reinstated by the General Counsel. The dates of
these latter actions are not indicated.
6. In exercising his discretion to issue the complaint against AFGE
Local 495, the General Counsel chose not to be influenced by the terms
of a Release (Resp. Exh. No. 3), signed by both Linda and Jimmy Moore,
dismissing with prejudice their civil lawsuit in the U.S. District Court
for the District of Arizona. /7/ The terms of the Release executed on
April 28, 1982 included a promise by both Jimmy and Linda Moore that
they,
" . . . shall not file any further litigation on any present
and/or future claims arising out of or in connection with action
taken against the Plaintiffs by AFGE Local 495 at its January 1982
membership meeting or prior thereto concerning the matters covered
by this lawsuit. Further, in this regard the Plaintiffs recognize
that Plaintiffs shall be bound by the decision or decisions to be
issued by AFGE in connection with any appeals emanating from the
aforesaid action taken by AFGE Local 495 and expressly agree that
Plaintiffs shall not file any litigation arising out of or in
connection with such appeals."
Ultimately, AFGE determined that her appeal to the National was
untimely.
7. In the unfair labor practice proceeding before me, Respondent
protested that Linda Moore, who had already refused to attend two union
hearings, was now attempting to get out from under a legally binding
"accord and satisfaction" in the District Court lawsuit by seeking
relief from the Authority concerning the same dispute. In passing on
this defense, I first ruled that it was proper for the General Counsel
to amend the complaint at the hearing to state the correct date of
expulsion as being in January 1982, albeit after the charge was filed.
However, I further stated as follows:
I feel compelled to point out, however, that such ruling
permits Charging Party Moore to do indirectly (via the General
Counsel) precisely what she could not do herself directly.
Because of the clear language of the Release executed on April 28,
1982, Moore was precluded from thereafter filing an amended charge
(should one have been legally necessary), or a new charge (should
her first charge already have been dismissed on the grounds, for
example, that it was premature or lacked merit, or both).
Although a different judicial forum might conclude that Moore's
conduct violated the spirit of the Release, the issue raised by
the Respondent is whether the terms of the Release estop Moore
from proceeding with this case. Although I will address this
issue I must observe at the outset that resolution of this issue
is not critical. The real issue is whether Moore's Release estops
the General Counsel from litigating this matter.
Since Moore did not, in fact, file any further litigation, she
technically complied with the literal language of the Release. In
this regard, I note that the Release did not expressly require
Moore to withdraw the related unfair labor practice charge then
pending before the Regional Director of the Authority. Therefore,
she was not estopped.
* * * * *
. . . More importantly, the Regional Director was not barred
because he was not a party thereto. Accordingly, the motion to
dismiss on this ground is denied.
In the absence of exceptions by Respondent (because it prevailed on
other grounds) my ruling on this contention is nonprecedential and not
binding upon the Authority.
8. On May 20, 1982 the Authority issued its decision in American
Federation of Government Employees, Local 2000, AFL-CIO, 8 FLRA No. 125,
8 FLRA 718 (1982) finding that the allegations at issue could not be
litigated under section 7116 of the Statute because such allegations
involved matters within the exclusive jurisdiction of the Assistant
Secretary pursuant to section 7120 of the Statute. The complaint
therein alleged a failure to comply with section 7116(c) in violation of
section 7116(b)(1) and (8). Notwithstanding the foregoing decision, the
Complaint in the instant case was issued on August 12, 1982.
9. In my decision below, I granted Respondent's motion to dismiss on
jurisdictional grounds. In reaching this conclusion I noted at footnote
11 that the proviso to section 7116(c) states that this subsection "does
not preclude any labor organization from enforcing discipline in
accordance with procedures under its constitution or bylaws to the
extent consistent with the provisions of this chapter." I also quoted
from the legislative history as follows:
. . . The initial jurisdiction to decide alleged violations of
the standards of conduct for labor organizations will be retained
by the Assistant Secretary, who administers similar standards in
the private sector. (Emphasis supplied). /8/
Finally, I recommended dismissal of the complaint noting that:
Here, as in AFGE Local 2000, the thrust of the allegations
against the Respondent concern purely internal union matters, to
wit: whether the Respondent had sufficient reason to expel Linda
Moore from membership and, if so, whether its constitution and
bylaws were followed in that procedure. Under the case law cited
above, therefore, I find that the matters at issue involve
allegations that certain of Respondent's conduct was inconsistent
with and violative of its constitution and bylaws, and thus are
matters within the exclusive jurisdiction of the Assistant
Secretary of Labor pursuant to the provisions of Section 7120 of
the Statute. (footnote omitted).
In the absence of exceptions by the General Counsel, my decision is,
of course, nonprecedential and not binding upon the Authority.
C. Whether the Position of the General Counsel in
Initiating this Proceeding was Reasonable in Law.
1. As authority for its legal position, the General Counsel cites
National Treasury Employees Union and National Treasury Employees Union,
Chapter 53 (Internal Revenue Service and Brooklyn District Office), 6
FLRA No. 37, 6 FLRA 218 (1981), where the Authority found that a union
had committed an unfair labor practice in removing a steward from office
for having testified in an Authority proceeding -- a right found to be
protected under section 7102 of the Statute. The Authority noted "this
should not be construed as abrogating the union's control of its own
internal affairs in the absence of a statutory violation such as here in
involved." (Emphasis added). Thus the Authority was very carefully
limiting its decision to the type of conduct involve therein; i.e.,
discrimination because a person appeared as a witness and gave testimony
in an Authority proceeding. The Authority did not indicate that its
decision was applicable to any alleged violation of section 7116(b) and
no issue was raised as to whether the Assistant Secretary also had
jurisdiction pursuant to section 7120 of the Statute and section 208.37
of the Rules and Regulations. /9/ In my opinion, therefore, the NTEU
case lends no support for the General Counsel's position.
2. The General Counsel also contends that Respondent's reliance (and
therefore my reliance) on American Federation of Government Employees,
Local 2000, AFL-CIO, 8 FLRA No. 125, 8 FLRA 718 (1982), herein AFGE
Local 2000, is misplaced because that decision is distinguishable and
inapposite. /10/ Although the General Counsel probably has no choice
but to make this contention, I cannot help but note that he is
indirectly challenging the basis for my dismissal even though he already
elected not to file exceptions with the Authority and challenge it
directly. Whether the Authority would want to deal with this contention
is a matter for the Authority to decide. As for me, I still believe
AFGE Local 2000 governs this case. What needs to be emphasized,
however, is that the issue here is not whether I correctly decided the
jurisdictional issue or even whether the Authority may have reached a
different conclusion. Rather, the issue is whether the General Counsel
-- armed with whatever evidence was gathered in its investigation of the
charge, and charged with knowledge of the state of the law as it existed
at that time -- had a reasonable basis in law and fact for issuing a
complaint on August 12, 1982 and putting Respondent to the expense of
defending against this governmental action.
The only reason asserted for attempting to distinguish that case from
this one is the contention that AFGE Local 2000 "did not involve the
violation of other statutory rights." Actually, however, the cases are
similar. Thus, they both arise out of an internal union disciplinary
proceeding alleging violation of the union's constitution and bylaws and
in both cases the General Counsel is arguing that discipline resulting
from "improper motivation" is a violation of another statutory right.
In AFGE Local 2000, the statutory section allegedly violated is section
7116(b)(1); here the statutory section is section 7116(b)(4). To me,
it makes no difference. To claim jurisdiction by merely alleging a
violation of section 7116 is not the same as proving the Authority has
jurisdiction. A more persuasive "legal position" is required. /11/ The
General Counsel's position was rejected in AFGE Local 2000 by the
Authority and in its decision it emphasized the fact that the Assistant
Secretary of Labor had exclusive jurisdiction. As noted earlier (see
fn. 7), I quoted from the legislative history indicating that, at least,
the Assistant Secretary had initial jurisdiction. In view of the AFGE
Local 2000 decision, and no persuasive arguments to distinguish its
applicability, it's my opinion that the General Counsel's position is
not substantially justified because it is not reasonable in law.
D. Whether the Position of the General Counsel in
Initiating this Proceeding was Reasonable in Fact.
1. The General Counsel contends, and I agree, that the mere fact
that Respondent prevailed before the Administrative Law Judge does not
alone justify the granting of an award of fees and expenses. As noted
in the legislative history: "The standard, however, should not be read
to raise a presumption that the government position was not
substantially justified, simply because it lost the case." (See H.R.
Rept. No. 1418, 96th Cong., 2d Sess. 11 (1980), reprinted in 1980 U.S.
Code Cong. and Ad. News 4990.) On the other hand, if it is found that no
prima facie case has been established by the General Counsel, and
additionally, if no exceptions are filed to such finding, does it follow
from this that the General Counsel's position was not reasonable in
fact? The answer, I believe, is that it depends upon the facts of each
case. Accordingly, like the National Labor Relations Board, it is
necessary to resolve these questions on a case-by-case basis. /12/
2. The General Counsel also contends that "the fact that the
Administrative Law Judge's findings of fact differed from the
investigative evidence on which the issuance of the Complaint was based
does not have any substantial significance here." In theory, I agree
with the foregoing statement; in fact, I disagree as to its application
here. This is because I reject the suggestion that my findings
"differed from the investigative evidence" on which the complaint was
based. In this regard I assume that the General Counsel's case-in-chief
represents the evidence upon which the complaint was based. Essentially
this consisted of the testimony of Jimmy and Linda Moore and certain
documentary evidence, primarily the transcript of the disciplinary
hearing. From the very beginning of this proceeding the General Counsel
has proceeded on the erroneous assumption that if I accepted Linda
Moore's testimony that she was not involved in Jimmy's campaign to
replace AFGE with NFFE and that she did not authorize him to use her
resignation letter as part of his campaign, then I necessarily would
have to infer that the Union's motive in preferring charges against her
was her marital status. But, in fact, it is insufficient to merely
prove her lack of participation in Jimmy Moore's campaign. The General
Counsel also has to prove the Union knew or had reason to know of her of
lack of involement, but preferred charges anyway, and presumably for one
reason only, namely, her marital status. /13/ In other words, the
General Counsel would have to prove that the Union's charges against
Linda were baseless and from this fact argue that the Union must have
had an unlawful motive. The fact that Linda Moore, in her pretrial
affidavit and at the hearing, denied being involved in Jimmy's
circulation of a petition does not make the Union's charges baseless.
When the General Counsel issued his Complaint, he already had before him
the transcript of the Union's hearing of August 1, which stated that
Linda's resignation letter was placed on the "VA Medical Center Bulletin
Boards" (G.C. Exhibit No. 8, pages 1 and 6). Therefore, the General
Counsel was aware that the Union had reason -- whether mistaken or not
-- for suspecting complicity on the part of Linda Moore in her husband's
activities. The burden was on Linda Moore to respond to these charges
and inform the Union that it was mistaken in preferring charges against
her. Because Linda refused to participate in the Union's disciplinary
proceeding, the evidence against her was undenied and unrebutted. As a
result, she was found guilty and expelled. I reject the General
Counsel's reliance on a so-called "marital assumption." There is
absolutely no evidence in the hearing transcript to suggest that Linda's
marital relationship played any part in the Union's decision to prefer
charges in the first place and find her guilty in the second place. The
foregoing evidence was known to the General Counsel before he issued his
complaint and was unchanged as a result of the evidence adduced at the
hearing. In footnote 17 of my decision I stated as follows: "Assuming,
arguendo, that the authority has jurisdiction here, I would find and
conclude that the General Counsel failed to prove a prima facie case of
any violation of section 7116(b)(4)." With respect to this conclusion, I
would like to make these two points: (a) My recommendation was not
based in any way on the fact that I discredited Jimmy Moore; his
testimony was corroborative only. Linda's testimony, if credited, could
still stand alone; (b) I did not discredit Linda Moore; rather, I
specifically declined (in paragraph 6) to decide whether Linda Moore
gave Jimmy "carte blanche authority" to utilize her resignation letter
as he saw fit. Indeed, I further stated that "the possibility exists
that she did not know what use he was going to make of it." In the light
of the foregoing, I am at a loss to understand the General Counsel's
statement (brief, p. 9) that "the facts as credited would not support
the taking of exceptions. . ." My view of the case is that the General
Counsel, if he wished, could have filed exceptions both to my
recommended dismissal on jurisdictional grounds as well as to my finding
that there was no prima facie case on the merits. However, since there
may be a myriad number of reasons why the General Counsel decided not to
file exceptions, I agree with the contention that as far as this case is
concerned, the failure to file exceptions is not dispositive.
3. The General Counsel further contends in his Answer as follows:
In the investigation and resolution of unfair labor practices,
the General Counsel is not empowered to resolve credibility
conflicts which may arise. Under the statutory scheme of the
Federal Service Labor-Management Relations Statute, it is the role
of the Authority, through its Administrative Law Judges, to credit
or discredit witnesses, through the mechanism of the adversary
hearing whereat witnesses testify under oath, are subject to
direct and cross-examination and can be observed in their demeanor
by the Administrative Law Judge.
I agree with the foregoing statement and I am sure there will be many
cases where the General Counsel will be required to issue a complaint in
order for a judge to resolve crucial factual questions which hinge upon
making a credibility determination. However, as I have indicated above,
this is not the case here and it is for this reason that I reject, as
misleading, the General Counsel's assertion that the factual basis for
its case was undermined because I "substantially discredited the
testimony of Jimmy Moore." As noted above, Jimmy Moore's testimony was
corroborative only. Assuming, arguendo, that I credited both Linda and
Jimmy in all respects, the result in this case would be no different.
Proving a negative proposition (i.e., Linda's noninvolvement) isn't the
same as proving an affirmative proposition (i.e., that the Union's
charges were based upon her marital status, rather than upon a mistaken
belief that she posted or authorized someone else to post her
resignation letter on the bulletin board.)
4. For the reasons stated in the preceding paragraphs of this
section, I find and conclude that the General Counsel's position was not
substantially justified because it had no reasonable basis in fact.
Inasmuch as the complaint alleged no statutory violations other than
section 7116(b)(4), I find it in unnecessary to address the arguments
raised in the General Counsel's brief at pp. 4 and 8.
E. Whether Special Circumstances make the Award sought
Unjust.
1. The General Counsel contends, and I agree, that the EAJA was not
intended to stifle the good faith exploration of novel issues through
the administrative process. Section 2430.3(b) of the Authority's Rules
and Regulations provides that "special circumstances" may make the award
of fees sought unjust. The legislative history on this point is
enlightening:
This "safety valve" helps to insure that the government is not
deterred from advancing in good faith the novel but credible
extensions and interpretations of the law that often underlie
vigorous enforcement efforts. It also gives the court discretion
to deny awards where equitable considerations dictate an award
should not be made. (See H.R. No. 1418, 96th Cong., 2d Sess. 11
(198), represented in 1980 U.S. Code Cong. & Ad. News 4990.)
The foregoing is applicable here, according to the General Counsel,
because of his assertion "that the section 7116(b)(4) allegation at
issue here -- involving marital status -- appears to be one of first
impression." But, in my opinion, the General Counsel is putting the cart
before the horse. The threshold issue is jurisdiction. Once you get
past that threshold issue, you can argue whether certain conduct is
violative of section 7116(b)(4). The jurisdictional fence to hurdle in
this case is the fact that a union has a statutory right under section
7116(c) to enforce discipline, and this entire proceeding arose in that
context. Moreover, section 7120 of the Statute gives the Assistant
Secretary of Labor the responsibility to review violations of a union's
conduct in this respect.
2. We would have a completely different situation if Linda Moore,
for example, were attempting to gain admission to the union and was
refused membership because of her marital status /14/ or any of the
other factors set forth in section 7116(b )(4). Such alleged
discrimination would not arise out of a union disciplinary proceeding
and, in my opinion, -- although dicta herein -- the Authority would have
jurisdiction. Therefore, the General Counsel is not being precluded
from advancing novel legal theories concerning the applicability of
section 7116(b)(4) as well as section 7116(c) and (b)(1), so long as he
does it in appropriate cases, and this is not one of them. /15/ My view
of the case before me is that there are no special circumstances which
would make the award of fees unjust. /16/
Findings and Conclusions
1. Section 7118(a)(6) of the Federal Service Labor Relations Statute
(herein the Statute) and section 2423.14 of the Authority's Rules and
Regulations provide that hearings in complaints be conducted in
accordance with subchapter II of chapter 5 of title 5 of the United
States Code. Therefore, the hearing before me was an "adversary
adjudication" within the meaning of section 504(b)(1)(C) of the EAJA.
2. Section 7105(d) of the Federal Service Labor-Management Relations
Statute authorizes the Authority to appoint administrative law judges
under section 3105 of Title 5. Pursuant to Part 2423 of the Authority's
Rules and Regulations, hearings on unfair labor practice complaints are
conducted by administrative law judges. There is no dispute that the
undersigned is an "adjudicative officer" within the meaning of section
504(b)(1)(D) of the EAJA.
3. My decision recommending dismissal of the complaint for lack of
jurisdiction was issued on July 22, 1983. Since no exceptions were
filed to my decision, the Authority issued an Order dated August 31,
1983 dismissing the complaint in accordance with the provisions of
section 2423.29(a) of the Rules and Regulations. In its Order the
Authority stated: "Therefore, . . . the findings, conclusions, and
recommendations in the Decision of the Administrative Law Judge
constitute, without precedential significance, the findings,
conclusions, decision and order of the Authority, and all objections and
exceptions thereto are deemed waived for all purposes." On the basis of
the foregoing, I find and conclude that the Authority's Order of August
31, 1983 constitutes a "final disposition" of an adversary adjudication
within the meaning of section 504(a)(2) of the EAJA. I further find
that the Authority's Order of August 31, 1983 constitutes "the entry of
a final order establishing that the applicant has prevailed" within the
meaning of section 2430.7 of the Rules and Regulations. Accordingly,
Respondent is a "prevailing party" within the meaning of section 504 of
the EAJA.
4. The application herein was received by the Authority on September
28, 1983. I find and conclude that the Application was timely filed
within the meaning of section 2430.7(a) of the Rules and Regulations.
5. The application asserts, and the answer admits, that AFGE Local
495, AFL-CIO is a small local union with less than 300 members. Its
office is in Tucson, Arizona. The organization is in existence solely
to represent employees at the Veterans Administration Medical Center in
Tucson, Arizona. It has never had any employees of any kind. Its net
worth has always been substantially less than $5,000,000. In compliance
with section 2430.6(f), a net worth exhibit was attached to the
application.
6. The application asserts, and the answer admits, that AFGE Local
495, AFL-CIO is a labor organization described in Section 501(c)(5) of
the Internal Revenue Code (26 U.S.C. 501(c)(5)) and is a tax exempt
organization.
7. The application asserts, and the answer admits, that the
Applicant incurred legal fees and expenses in defending against the
unfair labor practice complaint in Case No. 8-CO-20006-2. Since the
answer does not specifically deny or contest the amount of the fees and
expenses, I deem the assertions set forth in pargaraph 5 of the
application to be admitted. Accordingly, I find and conclude that the
Applicant incurred legal fees for services rendered which equal
$5,325.00. In addition, costs and expenses incurred in connection with
the rendering of such legal services totalled $144.83. By supplemental
affidavit dated October 31, 1983 in connection with its opposition to
the motion to dismiss, the Applicant requested additional attorney fees
in the amount of $172.50 and expenses of $15.69 for a total of $188.19.
This request was also unopposed. Thus the total of services and costs
incurred by Applicant in defending itself against the charges alleged in
this matter equals $5,658.02. I find and conclude that the application
filed by the Applicant complies fully with the requirements of section
2430.4 of the Rules and Regulations.
8. For the reasons more fully set forth above in Sections C and D of
the Discussion and Analysis, supra, I find and conclude that the
position of the General Counsel over which the Applicant has prevailed
was not substantially justified because the General Counsel has not met
its burden of showing that its position in initiating the proceeding was
reasonable in law and fact.
9. For the reasons more fully set forth above in Section E of the
Discussion and Analysis, supra, I find and conclude that no special
circumstances exist which would make the award sought unjust. (Section
504(a)(1) of the EAJA and section 2430.3(b) of the Rules and
Regulations.)
AWARD /17/
It is hereby ORDERED that American Federation of Government
Employees, Local 495, AFL-CIO, /18/ be awarded $5,658.02 for fees and
expenses.
/s/ FRANCIS E. DOWD
FRANCIS E. DOWD
Administrative Law Judge
Dated: May 4, 1984
Washington, DC
--------------- FOOTNOTES$ ---------------
(1) Awards are not provided for other Authority proceedings described
in 5 U.S.C. Section 7105, because unfair labor practice proceedings are
the only Authority proceedings which qualify as "adversary proceedings"
under 5 U.S.C. Section 554.
(2) The Rules and Reuglations do not specifically provide for the
filing by the Applicant of a response to the motion to dismiss.
However, I have authority to grant leave to submit a reply or to issue
an order to show cause why the motion to dismiss should not be granted.
(See section 2430.11 and 2423.19). In fact, the Applicant filed
Opposition by memorandum dated October 31, 1983 accompanied by a request
for additional fees and expenses incurred in preparing its opposition.
(3) The "motion to dismiss" procedure is designed, I assume, to avoid
the unnecessary expenditure of time and resources in litigating such
questions as an organization's net worth and number of employees or the
reasonableness of fees and expenses until after a threshold
determination has been made by the adjudicative officer that the
application is timely filed and the government's position is not
substantially justified. However, where the sole issue to be resolved
is whether the government's position is substantially justified, it
seems to me that filing a motion to dismiss is inappropriate as it only
adds an unnecessary step in the fee-adjudication procedure, as
illustrated by this case.
(4) See section 2430.12(b) of the Rules and Regulations.
(5) The General Counsel does not contend that Respondent unduly or
unreasonably protracted the proceeding.
(6) The legislative history behind this language discloses that
The test of whether or not a Government action is substantially
justified is essentially one of reasonableness. Where the
Government can show that its case had a reasonable basis both in
law and fact, no award will be made. (See H.R. Rep. No. 1418,
96th Cong., 2d Sess. 10 (1980), reprinted in 1980 U.S. Code Cong.
& Ad. News 4989.)
This standard has been recognized in the application of the EAJA to
the National Labor Relations Board. Tyler Business Services v.
N.L.R.B., 695 F.2d 73 (CA-4), 111 LRRM 3001 (1982). See also Jim's Big
M, 266 NLRB No. 119, 113 LRRM 1019 (1983).
(7) In the interim, Linda and Jimmy Moore had filed suit in October
1981, alleging various causes of action against the Respondent Local
Union, as well as several of its officers individually, for violations
of their civil rights, breach of contract, and defamation (Resp. Exh.
No. 4). Linda Moore admitted that the facts underlying that lawsuit
center on the same allegations she made here -- that she was improperly
expelled from the Respondent Local Union. Throughout the civil
litigation, Linda Moore was represented by an attorney, Debra Hillary.
(8) Legislative History of the Federal Service Labor-Management
Relations Statute, Title 7 of the Civil Service Reform Act of 1978,
Comm. Print No. 96-7, Committee on Post Office and Civil Service, House
of Representatives, 96 Congress, First Session, November 19, 1979, page
760.
(9) For an extensive and enlightening discussion of case law
involving "utilization and participation in the processes" of the
National Labor Relations Board, see Judge William B. Devaney's recent
decision in National Association of Government Employees, Local R5-66,
Case No. 4-CO-30026, OALJ 84-47 (March 12, 1984), in which he found a
violation of section 7116(b)(1) because a union disciplined a member who
caused other employees to file unfair labor practice charges with the
Authority. As noted therein at p. 14: "Where, as here, union
discipline is imposed, in whole or in part, because a member has invoked
the procedures of the Statute, it does not concern an internal union
matter, subject to the exclusive jurisdiction of the Assistant
Secretary, but touches a part of the public domain covered by the
Statute." In this regard I agree with Judge Devaney who said at fn. 9:
"At most, the jurisdiction of the Assistant Secretary over prohibited
discipline 'for exercising any right . . . under the . . . Act or this
chapter' is concurrent with the jurisdiction of the Authority under
Section 16 of the Statute, but in any event is not exclusive."
(10) In its brief dated December 17, 1982, in the unfair labor
practice proceeding before me, the General Counsel never even mentioned
the AFGE Local 2000 case.
(11) It has also been held by one court that the "position of the
United States" (section 2412(d)(1)(A) of EAJA) means the arguments
relied upon by the government in litigation, rather than the "underlying
(governmental) action" that precipitated the lawsuit. Spencer et. al.
v. N.L.R.B. et. al., 712 F.2d 539, DC Cir. (June 28, 1983).
(12) Even where a prima facie case was found by the Judge and no
exceptions were filed, the NLRB declined to find whether the
establishment of a prima facie case is a prerequisite to finding the
General Counsel's position reasonable in law and fact. Enerhaul, Inc.,
263 NLRB 890 (at fn. 3), 111 LRRM 1085 (1982). On appeal, the Eleventh
Circuit Court of Appeals reversed the NLRB and awarded fees and
expenses. 113 LRRM 3636.
(13) I have difficulty understanding why the fact of her marital
status is necessarily the only reason to be inferred. Is the General
Counsel suggesting that the Union would have taken no action against
Linda Moore if she were merely a co-worker who had written the same
letter whish was found posted on a bulletin board? Is'nt it possible,
and indeed more likely, that the charges were preferred against Linda
Moore because of the contents of her resignation letter; i.e., the
harsh criticism and accusations concerning Union President Greeson's
integrity and competence? No evidence was introduced to show that
similar letters were written and disseminated by other members, but that
charges were not preferred against them (thus inferring disparate
treatment).
(14) The General Counsel assumes that the term "marital status" in
section 7116(b)(4) is not confined to the fact that a person may be
married, single or divorced. Thus it is alleged that the Union
discriminated against Linda Moore not because she was a married woman
(i.e., her individual marital status), but because of whom she was
married to (i.e., Jimmy Moore). Assuming that the Authority had
jurisdiction in this matter, a novel issue for it to then decide would
be the meaning and scope of the statutory term "marital status."
(15) I would emphasize that the case before me is not one in which
the charges against Linda Moore were admittedly based upon a factor
prohibited by section 7116(b)(4). Nor is this a case, for example
(hypothetically), where a woman is expelled from union membership
admittedly and specifically because she married a high-level management
official and the union is concerned that her continuing membership may
result in the unauthorized disclosure to management of information about
the union's internal affairs. In such event, an arguable case for
concurrent jurisdiction might be a defense to an EAJA fee application,
even though the Authority -- in a case of first impression -- might
decide the Assistant Secretary had initial or exclusive jurisdiction.
Such a factual situation might arguably be distinguishable from AFGE
Local 2000.
(16) Indeed, if there are any special circumstances in this case,
they cut the other way. Linda Moore can hardly be regarded as having
"clean hands," having pursued this litigation after signing a Release in
the District Court of Arizona agreeing to "be bound by the decision or
decisions to be issued by AFGE in connection with" her appeals of her
expulsion. Without her cooperation and testimony, the General Counsel
could hardly have issued the complaint herein. Moore's conduct,
however, is not relevant to the issues actually been considered and
decided in this proceeding before me. Rather, it is the General
Counsel's decision to issue a complaint which is at issue.
(17) Section 504(a)(1) of the EAJA provides as follows:
An agency that conducts an adversary adjudication shall award,
to a prevailing party other than the United States, fees and other
expenses incurred by that party in connection with that
proceeding, unless the adjudicative officer of the agency finds
that the position of the agency as a party to the proceeding was
substantially justified or that special circumstances make an
award unjust. (Emphasis supplied.)
In this regard, section 504(c)(1) of the EAJA provides that a party
dissatisfied with the fee determination made under section 504(a) may
petition for leave to appeal to the court of the United States having
jurisdiction to review the merits of the underlying decision of the
agency adverse determination. However, compliance with section 2430.13
of the Rules and Regulations requires the filing of exceptions with the
Authority.
(18) Section 2430.14 of the Rules and Regulations requires applicants
seeking payment of an award to file a copy of the Authority's "final
decision granting an award" to its Executive Secretary. Notwithstanding
a request for payment directly to the attorney involved, my reading of
the EAJA and the Authority's Rules and Regulations indicates that
payment should be made to the Applicant. Therefore, I direct that the
Authority's check for $5,658.02 should be made out for payment to AFGE
Local 495, AFL-CIO and mailed directly to its authorized representative,
Stanley Lubin, Esq. of McKendree and Lubin, La Hacienda Antiqua, 902
West McDowell Road, Phoenix, Arizona 85007.