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 $