22:0966(98)CO - AFGE Local 495 (VA Medical Center, Tucson, AZ) and Linda S. Moore -- 1986 FLRAdec CO
[ v22 p966 ]
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.