On Petitioner's Application for Attorneys' Fees
Before: Ginsburg, Chief Judge, and Sentelle and
Henderson, Circuit Judges.
Opinion for the Court filed Per Curiam.
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
We decided the merits of this controversy in Precision Concrete v. NLRB, 334 F.3d 88 (D.C. Cir. 2003). We now consider petitioner's application for attorneys' fees and expenses pursuant to the Equal Access to Justice Act (''EAJA''), 28 U.S.C. § 2412. Because we find that as to a substantial portion of the litigation the General Counsel was not substantially justified in issuing and prosecuting a complaint and the Board was not substantially justified in defending its decision through litigation in this court, we award a portion of the fees sought in the application for the reasons more fully set forth below.
The factual background of the controversy is set forth in some detail in Precision Concrete v. NLRB, 334 F.3d at 89– 90, but we need to make brief reference to pertinent portions of the background facts in order to analyze the application before us. Briefly put, after a contentious organization drive, approximately 100 of Precision's work force undertook a strike called by the Building Trades Organizing Project (''Union''). The strike was not successful. The company hired replacement workers and refused to reinstate the strikers. The Union filed a series of unfair labor practice charges. The General Counsel of the Board filed a complaint which in addition to the charges filed by the Union alleged that the company had committed an unfair labor practice in an incident involving an employee wearing a union t-shirt (the ''Pulido–Mendez t-shirt incident''). This was not included in any formal unfair labor charges filed against the company. The Administrative Law Judge (''ALJ'') hearing the complaint held that the Pulido–Mendez t-shirt incident was an unfair labor practice, that it was ''closely related'' to previously filed formal charges, and that the incident was a cause of the strike. Because ''an unfair labor practice striker who unconditionally offers to return to work is entitled to reinstatement,'' Gibson Greetings, Inc. v. NLRB, 53 F.3d 385, 389 (D.C. Cir. 1995), this finding was critical to the claimed right of the strikers to a reinstatement remedy, which they could not obtain if the strike were economic, and not in response to an unfair labor practice or practices. On appeal, the Board upheld the decision of the ALJ. As neither the Board nor the ALJ found any other unfair labor practice to have been a cause of the strike, the Board's major remedy of reinstatement depended entirely on the Board's jurisdiction over the ''t-shirt'' claim. Precision appealed to this court arguing that the t-shirt incident was not properly before the Board. We agreed, holding that the Board did not have jurisdiction to adjudicate the t-shirt incident and therefore did not have jurisdiction to enter the reinstatement relief against the petitioning employer. See, e.g., Drug Plastics & Glass Co., Inc. v. NLRB, 44 F.3d 1017, 1022 (D.C. Cir. 1995) (''Where the Board is unable to connect the allegations in its complaint with the charge allegation, we are unable to find that the Board has jurisdiction over the unrelated complaint allegations.''). Based on our decision in its favor in Precision, the employer now petitions this court for reimbursement of its attorneys' fees incurred in the matter in the amount of $143,430.50 in attorneys' fees and $7,994.05 in expenses.
a court shall award to a prevailing party... fees and other expenses ... incurred by that party in any civil action ... including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). Precision argues that the Board was not ''substantially justified'' in litigating this matter and that it is therefore entitled to reimbursement of the fees and expenses prayed for. In support of this argument, Precision asserts that ''the Board's insistence that it had jurisdiction over the Mendez t-shirt incident is the primary reason Precision continued to pursue this case,'' and that ''[i]t would not have been necessary for Precision to incur any fees beyond the hearing before the Administrative Law Judge absent this jurisdictional error by the Board.'' Precision Concrete's Reply in Support of its Application at 4–5.
The NLRB disagrees, arguing that no fees should be reimbursed for litigating the Pulido–Mendez t-shirt incident because the Board was substantially justified in bringing that action. The NLRB also argues that no fees should be awarded for time spent on four unfair labor practices found by the ALJ/Board. The Board also argues that Precision's counsel expended uncompensible hours on other arguments in support of its petition for review of the Board's holding on the t-shirt incident and that petitioners should not be awarded fees for the time spent on those arguments. Because we agree with Precision that the NLRB acted without substantial justification, we hold that it is entitled to fee reimbursement under the Equal Access to Justice Act, although we will order some reduction to the amount prayed.
Subject to other statutory criteria which are not in dispute in this matter, the EAJA provides that a ''prevailing party'' in actions ''including proceedings for judicial review of agency action, brought by or against the United States'' are entitled along with the customary costs of litigation to a recovery of fees and other expenses incurred. 28 U.S.C. § 2412(d)(1)(A). As Precision is obviously the prevailing party, and as there is no dispute as to any other statutory criterion, the governing issue in this case is whether the position of the NLRB was substantially justified. We hold that beginning with the review of the ALJ's decision by the Board, it was not.*fn1
As we made clear in the merits decision of this case, the tshirt incident which was the only foundation for the principal remedy ordered by the Board and brought to us for review first arose in an amended complaint more than six months after the alleged incident. Section 10(b) of the National Labor Relations Act requires that ''no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board.'' 29 U.S.C. § 160(B) (emphasis added). While it is well established that a complaint need not be filed within six months of the incident and may be amended more than six months after the incident, see NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d Cir. 1952), the statute does require ''that the complaint be based upon an unfair labor practice charge filed within six months of the allegedly unlawful conduct.'' Precision, 334 F.3d at ...