American Federation of Government Employees, Local 987 and Nedra Bradley (Authority decision, April 30, 1999)

Read the official release (flra.gov)

Final FLRA decision. This is the Authority’s final order on an attorney-fee application arising from an unfair-labor-practice proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority’s order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

AFGE Local 987 sought attorney fees after the Authority dismissed an unfair labor practice complaint concerning its discipline of former member Nedra Bradley. An administrative law judge awarded $9,937.50, finding that the General Counsel’s prosecution lacked substantial justification. The Authority reversed the fee award and dismissed the application. It found a reasonable factual and legal basis to litigate the unsettled question whether the union could discipline Bradley before complying with an order to reinstate her to membership. It also concluded that the circumstances would make a fee award unjust. Member Wasserman dissented, and the linked release includes his opinion and the judge’s decision.

Decision snapshot

• Authority: Equal Access to Justice Act, 5 U.S.C. § 504(a)(1), and 5 C.F.R. § 2430.1.
• Outcome: Judge’s $9,937.50 fee award reversed; union’s application dismissed.
• Key point: A dismissed complaint can still have been substantially justified when unsettled law and the facts supported bringing it.

Full text (FLRA public release)

[ v55 p432 ]

55 FLRA No. 71

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 987

(Respondent)

and

NEDRA BRADLEY

(Charging Party)

AT-CO-31253

53 FLRA 364 (1997)

__

DECISION AND ORDER

ON APPLICATION FOR ATTORNEY FEES

April 30, 1999

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members [n1]

I. Statement of the Case

This application for attorney fees under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504(a), was filed by the Respondent American Federation of Government Employees, Local 987 (Union). The Administrative Law Judge (Judge) found that the position of the General Counsel in the underlying unfair labor practice (ULP) case was not substantially justified and granted the fee application in the amount of $9,937.50. The General Counsel has filed exceptions to the Judge's ruling and the Union has opposed those exceptions.

On consideration of the attached decision of the Judge and the entire record, we adopt the Judge's findings, conclusions, and recommendations only to the extent consistent with this decision. Contrary to the Judge, we conclude that the position of the General Counsel was substantially justified and thus deny the Union's fee petition.

II. Background and Judge's Decision

A. Background

In American Federation of Government Employees, Local 987, Warner Robins, Georgia and Nedra T. Bradley, 46 FLRA 1048 (1992) (AFGE Local 987 I), the Authority held that the Union violated section 7116(b)(1) and (8) of the Federal Labor-Management Relations Statute (Statute) by denying readmission to membership to the Charging Party, Nedra Bradley. The Union had refused membership due to certain alleged improprieties by Bradley while she was Union president and Bradley resigned from the Union before discipline was brought against her. In its remedial order, the Authority ordered the Union, among other things, to "unconditionally offer to admit [Bradley] to full membership in the Union, and make her whole, consistent with applicable laws and regulations, for any loss of benefits she may have suffered by reason of its denial of membership to her." Id. at 1049-50. The manner in which the Union complied with this order led to a second ULP complaint which was eventually dismissed in American Federation of Government Employees, Local 987 and Nedra T. Bradley, 53 FLRA 364 (1997) (AFGE Local 987 II), prompting the Union's current petition in this case for attorney fees.

1. The Union's Discipline of Bradley

In February 1993, a little more than a month after the Authority issued the remedial order in AFGE Local 987 I, the Union initiated disciplinary proceedings against Bradley based on the alleged improprieties. At the time it initiated disciplinary action, the Union had not complied with the Authority's remedial order by reinstating Bradley to membership.

In August 1993 the Union found Bradley culpable on the charges. Bradley had been given notice of the charges and an opportunity to respond, but declined to appear at the disciplinary hearing. She was ordered to repay the money she was found to have misappropriated from the Union's treasury, and thereafter serve a 5 year suspension from membership. In September 1993 Bradley filed a second ULP charge attacking this Union discipline.

On December 15, 1993, the General Counsel issued a complaint based on Bradley's ULP charge. The complaint alleged in relevant part that the Union violated the Statute by disciplining and suspending Bradley from Union membership at a time when the Union was obliged, pursuant to the Authority's remedial order in AFGE Local 987 I, to have reinstated Bradley to Union membership. The complaint alleged that by so doing, the Union denied Bradley the right to Union membership in violation of sections 7116(b)(8) and 7116(c) of the Statute. The complaint also alleged that the Union interfered with her rights under section 7102, thereby violating section 7116(b)(1). [ v55 p433 ]

2. Judicial Review by the 11th Circuit

In February 1993, subsequent to initiating disciplinary action against Bradley, the Union appealed the Authority's ruling in AFGE Local 987 I to the United States Court of Appeals for the Eleventh Circuit. The Authority filed a cross-application for enforcement of its order.

However, on December 10, 1993, prior to the Court acting on its judicial petition, the Union moved the court of appeals to dismiss its appeal. In support of its motion, the Union claimed that its August 1993 discipline of Bradley, and other actions such as its retroactive reinstatement of Bradley to membership, made further court proceedings on enforcement of the Authority's order unnecessary. The court granted the Union's motion to dismiss its petition for review.

On January 28, 1994, in an unpublished memorandum opinion, the Eleventh Circuit granted the Authority's cross-application for enforcement in AFGE Local 987 I. AFGE v. FLRA, 15 F.3d 1097 (11th Cir. 1994). The court specifically noted, however, that its ruling should not be construed as governing any issues raised by the Union's disciplinary action against Bradley that were then pending in the ULP proceeding brought by the General Counsel.

3. The Authority's Decision in AFGE Local 987 II

In AFGE Local 987 II, the Authority dismissed the second complaint against the Union. In reaching this determination, the Authority concluded that an allegation of noncompliance with an Authority order does not constitute a separate ULP violation. 53 FLRA at 369. Additionally, the Authority held that under section 7116(c) of the Statute, a union can discipline a nonmember for conduct occurring while the employee was a member of the union. Id. at 370. In this regard, the Authority made two observations addressing the General Counsel's assertion that the Union was obliged to reinstate Bradley before taking disciplinary action against her. First, the Authority noted that events can occur after issuance of a remedial order that excuse or render moot compliance with the order. The Union's taking lawful discipline against Bradley was such an event. Second, the Authority stated that no good purpose would be served by requiring the Union to rescind the discipline, readmit Bradley to membership, and then rerun the disciplinary action. Id.

B. The Union's Application for Attorney Fees and the General Counsel's Opposition Thereto

The Union filed a fee application asserting that it was the prevailing party in AFGE Local 987 II and that the General Counsel's position in prosecuting the complaint was not substantially justified under the EAJA. More specifically, the Union argued that the General Counsel based its prosecution of the complaint solely on the theory that the Union had failed to comply with the Authority's order in AFGE Local 987 I. Further, the Union argued that the General Counsel never established a theory for why the Union could not lawfully discipline a former member. The Union sought a total of $17,057 in fees and costs from the General Counsel under the EAJA.

The General Counsel responded that there was a reasonable basis in law and fact for maintaining the litigation. Noting that the dismissal of the complaint in itself does not establish lack of substantial justification, the General Counsel pointed to several factors demonstrating that he acted reasonably in prosecuting the complaint. Specifically, and as relevant here, the General Counsel argued that the complaint did not rely solely on the theory that the Union had failed to comply with the Authority's order in AFGE Local 987 I. Rather, the complaint relied on new conduct arising after the Authority issued its order, that is, the August 1993 discipline of Bradley.

C. The Judge's Decision on the Fee Application

The Judge noted that there was no dispute that the Union was the prevailing party in the case, and that the Union met the eligibility requirements as a party entitled to an award of fees under the EAJA. Rather, the sole issue to be resolved was whether the General Counsel's litigating position was "substantially justified" within the meaning of the EAJA.

The Judge rejected the General Counsel's claim that the violation in this case involved the Union's taking discipline against Bradley while it was subject to an Authority order to unconditionally reinstate her. In the Judge's view, the purpose of the General Counsel's ULP complaint was to enforce the Authority's order in AFGE Local 987 I and "the failure to comply with an Authority remedial order is not itself an unfair labor practice and it most assuredly does not become an unfair labor practice because Respondent takes action authorized by the Statute[.]" Judge's decision at 6. Noting the established private sector law permitting a union to discipline a nonmember for conduct that occurs while a member, the Judge also rejected the General Counsel's [ v55 p434 ] claim that Bradley should have been a member of the Union when discipline was brought.

The Judge then considered whether the exception to fee liability under the EAJA, for litigation of a novel or untested legal theory, warranted denial of the application. In this connection, the Judge stated that the theory that a union's right to discipline may be subjugated to a prior Authority order directing unconditional reinstatement of an individual to membership, "has no reasonable basis in law." Judge's decision at 9. In support of this conclusion, the Judge again referenced the requirement that the Authority enforce its orders in the courts of appeals, not in new ULP proceedings.

Having concluded that the position of the General Counsel was not substantially justified, the Judge analyzed the Union's fee petition. After excluding several hours of work claimed by Union counsel and declining to adopt the higher hourly rate sought by the Union, the Judge awarded the Union fees in the amount of $9,937.50.

III. Positions of The Parties

A. The General Counsel's Exceptions

As pertinent here, the General Counsel argues that there was a reasonable basis, in fact and law, for litigating the complaint in AFGE Local 987 II. As for the facts, the General Counsel relies on: the Authority's finding and order in AFGE Local 987 I; the Union's failure to admit Bradley to membership prior to imposing discipline; and, the 11th Circuit's explicit statement that its order was not intended to resolve the then pending disciplinary action.

As for a sufficient basis in law for pursuing the complaint in AFGE Local 987 II, the General Counsel points out that the precedent relied on by the Union and the Judge to support the Union's discipline did not involve the facts at issue here, i.e., discipline taken against a nonmember while the Union was the subject of a reinstatement order concerning the nonmember. In the General Counsel's view, a union's right to discipline in these novel factual circumstances is appropriately addressed by the Authority. The General Counsel then argues that the Judge erred in finding there was no substantial justification for the litigation in AFGE Local 987 II based on the need to pursue a contempt proceeding in AFGE Local 987 I. Rather, the reasonableness of the position must be determined solely with respect to the facts in AFGE Local 987 II.

B. The Union's Opposition

The Union, in its opposition, argues that the General Counsel never had a credible theory on which to proceed, much less a "substantially justified" one. The Union asserts in this connection that the facts and law clearly establish that the Union acted lawfully and the General Counsel lacked a basis for pursuing the complaint.

As for pertinent facts here, the Union notes that the General Counsel dismissed other ULP charges filed by Bradley concerning the Union's investigation leading up to the discipline of Bradley and this is inconsistent with issuing the complaint because of the discipline taken. Further, the General Counsel "blurred" the compliance issue in AFGE Local 987 I and the merits issues in AFGE Local 987 II. In this regard, the Union argues that it was found to have complied with AFGE Local 987 I and the General Counsel therefore cannot claim that the Union failed to take steps to comply with the Authority's reinstatement order. In the Union's view, the 11th Circuit's statement does not serve as a justification for the General Counsel pursuing this complaint.

The Union asserts that the General Counsel has failed to enunciate a legal theory supporting its actions. In the Union's view, the Authority clearly upheld the Union's right to take disciplinary action against Bradley in this case. Moreover, the Union claims that there was nothing novel about the General Counsel's legal theory.

IV. Analysis and Conclusions

A. Applicable Principles Under the EAJA

Pursuant to the EAJA (5 U.S.C. § 504(a)(1)), and the Authority's regulations implementing the EAJA (5 C.F.R. §§ 2430.1 et seq.), an eligible entity may receive an award of attorney fees when it is the prevailing party in an unfair labor practice proceeding. However, notwithstanding eligibility and success, an eligible entity may not receive an award of attorney fees if "the General Counsel's position in the proceeding was substantially justified, or special circumstances make an award unjust." 5 C.F.R. § 2430.1. See Temp Tech Industries v. NLRB, 756 F.2d 586, 589 (7th Cir. 1985).

The determination of whether the position of the General Counsel is "substantially justified" depends on whether the position has a "reasonable basis both in law and fact[,]" or put another way, whether it is "justified to a degree that could satisfy a reasonable person." American Federation of Government Employees, Local 1857, 48 FLRA 900, 901 (1993) (AFGE Local 1857), quoting Pierce v. Underwood, 487 U.S. 552, 565 [ v55 p435 ] (1988). The General Counsel has the burden of establishing the reasonableness of the position on the law and the facts. AFGE Local 1857, 48 FLRA at 901; See Hess Mechanical Corp. v. NLRB, 112 F.3d 146, 149 (4th Cir. 1997); Phil Smidt & Son, Inc. v. NLRB, 810 F.2d 638, 641 (7th Cir. 1987). However, the failure to prevail in the litigation does not necessarily mean that the position asserted was not substantially justified. Pierce v. Underwood, 487 U.S. at 565-66. Indeed, if the General Counsel's mere failure to prevail triggered the right to attorney fees under the EAJA, then the statute's "substantially justified" requirement would be rendered superfluous.

Additionally, substantial justification has been found and fee awards have thus been denied where the government has "advanc[ed] in good faith the novel but credible extensions and interpretations of the law that often underlie vigorous enforcement efforts." H.R. Rep. No. 1418, 96th Cong., 2nd Sess. at 11, reprinted in 1980 U.S. Code Cong. & Ad. News 4953, 4990. This provision was intended as a "safety valve" for government agencies bringing actions against private parties, to allow for such "vigorous enforcement efforts." Id. See, e.g., Marcus v. Shalala, 17 F.3d 1033, 1037 (7th Cir. 1994) ("novelty of the question weighs in the government's favor" when deciding whether the government's position was substantially justified); Timms v. United States, 742 F.2d 489, 492 (9th Cir. 1984) (government can show its position was substantially justified by showing that it advance a novel, yet credible position). The Authority has also considered the novelty of the General Counsel's legal theory in resolving a fee application, holding that novelty will not, in and of itself, substantially justify a prosecution or serve as a special circumstance that will render a fee award unjust. American Federation of Government Employees, Local 495, AFL-CIO (Veterans Administration Medical Center, Tucson, Arizona) 22 FLRA 966, 977 (1986) (AFGE, Local 495) (awarding fees where the General Counsel put forth a novel legal theory, but did not make out a prima facie case under the novel theory pursued).

The "special circumstances" that make a fee award unjust are not specifically described in the EAJA. As a result, courts have concluded "that the statutory language expresses a congressional directive for courts `to apply traditional equitable principles' in determining whether a prevailing party should receive a fee award under EAJA." Air Transport Association of Canada v. F.A.A., 156 F.3d 1329, 1333 (D.C. Cir. 1998), quoting Oguachuba v. Immigration and Naturalization Svc., 706 F.2d 93, 98 (2nd Cir. 1983) (Oguachuba).

B. EAJA Considerations in This Case

1. Prevailing Party and Eligibility Status

There is no dispute that the Union was the prevailing party in the AFGE Local 987 II proceeding. 5 C.F.R. § 2430.2(b). There is also no dispute that the Union here meets the eligibility requirements to receive an award under the EAJA. 5 C.F.R. § 2430.2(b)(1)-(4).

2. Factual Predicate of AFGE Local 987 II

The pertinent facts in this case are undisputed. The Union was found to have improperly denied Bradley membership in June 1991. To remedy this violation, in December 1992 the Authority ordered the Union to unconditionally reinstate her to membership. AFGE Local 987 I, 46 FLRA at 1049-50. Prior to complying with the Authority's remedial order to reinstate, however, the Union disciplined Bradley in August 1993. As a result, rather than reinstating Bradley to membership before effecting any discipline, the [U]nion instead disciplined her as a nonmember and, after discipline had been imposed, advised her that "the Union considered her to have been retroactively reinstated to membership" from the June 1991 to the effective date of the disciplinary action. AFGE Local 987 II, 53 FLRA at 367.

The General Counsel filed a complaint (AFGE Local 987 II) alleging, inter alia, that the Union violated the Statute by disciplining Bradley prior to complying with the Authority's remedial order. Subsequent to the lodging of the ULP complaint, in enforcing the Authority's decision in AFGE Local 987 I, the 11th Circuit noted that its order was "not intended to resolve any of the issues involving the Union's subsequent disciplinary action against Nedra Bradley that are currently pending in the related unfair labor practice proceeding." AFGE v. FLRA, 15 F.3d 1097.

3. Legal Predicate of AFGE Local 987 II

Prior to the AFGE Local 987 I decision, the Authority had not previously determined whether the mere failure to comply with an Authority remedial order was an unfair labor practice. Additionally, the Authority had not determined whether it was violative of the Statute for a labor organization to discipline a nonmember for conduct occurring while the individual was a member. Finally, the Authority had never considered whether a labor organization is entitled to discipline a nonmember when under an extant order to reinstate her to membership. [ v55 p436 ]

C. EAJA Determinations in this Case

We find in the circumstances of this case, where the Authority had not previously ruled on dispositive issues it decided in AFGE Local 987 II, that the General Counsel had a reasonable basis in fact and law to pursue the litigation. Accordingly, we conclude that the position of the General Counsel was substantially justified. Additionally, the special circumstances of this case make an award of fees unjust.

The factual predicate substantially justified the General Counsel's pursuit of the litigation in this case. The Union here only obeyed the Authority's order after it had effected its disciplinary action against Bradley. As a result, Bradley was never actually admitted to full membership in accord with the Authority's order in AFGE Local 987 I, but was instead only retroactively readmitted after she had been suspended from membership. Additionally, the 11th Circuit, cognizant of the General Counsel's pending unfair labor practice proceeding concerning this discipline, specified that its enforcement of the Authority's decision in AFGE Local 987 I was not to be construed as governing any issues in the disciplinary case. These facts raise legitimate questions concerning the propriety of the disciplinary action taken by the Union and thus provide a reasonable basis for the General Counsel's actions in AFGE Local 987 II.

The General Counsel's legal position also substantially justified the prosecution of the complaint in AFGE Local 987 II. Prior to the Authority's decision in AFGE Local 987 II, the Authority had never determined whether noncompliance with an Authority remedial order was an unfair labor practice, nor had the Authority considered whether a union could permissibly discipline a nonmember for actions taken while a member. Although the Authority, following private sector and Executive Order precedent, concluded that neither of these actions constituted a ULP 53 FLRA at 369, this does not mean that the General Counsel "blurred" the compliance issue in AFGE Local 987 II with the merits issue, as alleged by the Union, and was therefore not substantially justified in putting the matter before the Authority for resolution in the first instance. Similarly, the Authority's observation that no purpose would be served in requiring the union to rescind the discipline, readmit Bradley to membership, and then rerun the disciplinary action was an exercise of remedial discretion rather than a reflection of the Authority's opinion of whether the General Counsel was substantially justified in pursuing the case.

Moreover, even if the General Counsel should reasonably have surmised that neither of these previously unaddressed legal theories, independently and of themselves constituted a ULP, it was not unreasonable for him to have pursued the separate theory that together these actions violated the Statute. Notwithstanding the Authority's rejection of this argument and dismissal of the complaint, we conclude that the General Counsel had a reasonable basis for pursuing the novel theory that the Union was not permitted to discipline Bradley as a nonmember at a time when it was under an Authority order to unconditionally reinstate her. Several considerations support this conclusion.

First, this was a matter of first impression requiring the balancing of the Union's right to take disciplinary action against the Union's obligation to comply with the Authority's order concerning Bradley. The case presented novel questions and it was "reasonable for the General Counsel to question the applicability of existing Authority law to the facts of the case[.]" AFGE Local 1857, 48 FLRA at 907. As such, "this is not a case [where] the General Counsel decided to `take a long shot' by, for example, arguing that controlling precedent should be overruled." Teamsters Local Union No. 741, 321 NLRB 886, 890 n.17 (1996) (denying fees under the EAJA).

Second, the case is clearly distinguishable from precedent where attorney fees have been awarded under the EAJA. For example and as noted earlier, in AFGE Local 495 the Authority held that the General Counsel's pursuit of a novel theory did not justify his failure to have established even a prima facie case under the novel legal theory pursued. 22 FLRA at 977. The General Counsel's case suffers from no such infirmity here. As noted above, no controlling Authority precedent in existence prior to the merits decision in AFGE Local 987 II governed resolution of the matter. We have been presented with no instance where an agency was found to have acted without substantial justification under the EAJA in circumstances like these.

Third, the purpose of permitting a recovery of attorney fees under the EAJA is "to deter the government from bringing unfounded suits or engaging in arbitrary or unjust administrative behavior." Oguachuba, 706 F.2d at 98. We do not find the General Counsel to have engaged in any such behavior in this case. Indeed, the Union acknowledges that the General Counsel dismissed other charges Bradley filed against the Union during this period. Rather than proving inconsistency, as the Union asserts, in our view this demonstrates that the General Counsel was exercising independent prosecutorial discretion concerning the relative merits of Bradley's charges against the Union. This conduct is entirely consistent with the General Counsel's autonomous, stat- [ v55 p437 ] utory role of filing and prosecuting complaints. 5 U.S.C. § 7104(f)(2)(B). As a public prosecutor, it is appropriate that the General Counsel, as in this case, "is not deterred from advancing in good faith credible extensions and interpretations of the law[.]" H.R. Rep. No. 1418, 96th Cong., 2nd Sess. at 11, reprinted in 1980 U.S. Code Cong. & Ad. News 4953, 4990.

We note and agree with our dissenting colleague's assertion that the Union had an institutional interest in addressing Bradley's alleged breach of fiduciary responsibilities. (p.3). Indeed the Authority recognized the Union's right to discipline Bradley for these alleged offenses in AFGE Local 987 II. However, we do not agree that it should have been apparent to the General Counsel that the Union's right to discipline Bradley necessarily predominated over its obligation to comply with the Authority's order in AFGE Local 987 I. In this respect, it should be noted that in Local 987 I, the Authority directed only that Bradley be returned to membership -- not to the fiduciary position she had previously held and allegedly abused.

Finally, in addition to our conclusion that the General Counsel's position in this case was substantially justified, we note that the special circumstances of this case would, if necessary, lead us to deny the Union attorney fees under the EAJA. This entire litigation was precipitated by the Union's insistence on disciplining Bradley prior to complying with the Authority's order on reinstatement. The course of action chosen by the Union raised legitimate questions under the Statute. Had the Union reinstated Bradley as required by the Authority's order in AFGE Local 987 I and thereafter disciplined Bradley, there would have been no theory, novel or otherwise, on which to issue a complaint. As a result, the prosecution in AFGE Local 987 II and ensuing current litigation over attorney fees could have been avoided while, at the same time, the Union's interest in taking disciplinary action against Bradley could have been satisfied. Although the Authority found that the Union's actions did not violate the Statute, in applying the traditional general principles of equity, we would deny counsel fees in this case.

V. Conclusion

The application for attorney fees is dismissed.

File 1: Authority's Decision in 55 FLRA No.
71

File 2: Opinion of Member Wasserman

File 3: ALJ's Decision

Footnote # 1 for
55 FLRA No. 71

• Authority's Decision

Member Wasserman's dissenting opinion is set forth at the end of this decision.

[ v55 p437 ]

Member Wasserman, dissenting:

I do not think that the General Counsel's position in this case was substantially justified or that other special circumstances support denial of the fee request. Accordingly, I dissent.

The General Counsel's prosecution of this case was in a context that militated against such pursuit. The complaint alleged interference with Bradley's rights under sections 7102 and 7116(c) based only upon the disciplinary action being taken during the period of non-compliance with the Authority's reinstatement order. Enforcement of an Authority order is accomplished through the filing of a petition in an appropriate United States court of appeals. 5 U.S.C. § 7123(b). Indeed, that is exactly what the Authority did through its action taken in the 11th Circuit. Once a petition for enforcement is granted, contempt proceedings provide the basis for achieving compliance if a party remains recalcitrant. I do not think there was anything novel or untested about the concept of judicial enforcement that supported the General Counsel's attempt to address the failure to reinstate Bradley in the context of an unfair labor practice case.

Further, I am not persuaded by the General Counsel's contention that he was raising a new ULP violation of "whether a union can, during the pendency of an order to reinstate an employee, turn around and expel that employee prior to reinstatement." GC Exceptions at 13 n.8. That description sounds to me like an effort to enforce the first ULP reinstatement order. To the extent one views the matter as a true combination of the reinstatement issue with the issue of the propriety of discipline against a non-member, it still does not constitute a justifiable, novel legal position. In my view, it simply combines two questions which did not need answering in the context of this case.

Even though the Authority had not previously considered whether a union could take discipline against a former member, it is evident that the Statute permits discipline consistent with a union's constitution and Chapter 71. 5 U.S.C.§7116(C). In light of this statutory language and the private sector precedent permitting discipline of non-members, see, e.g., Local 1255, International Association of Machinists and Aerospace Workers v. National Labor Relations Board, 456 F.2d 1214 (5th Cir. 1972), seeking an explicit determination [ v55 p438 ] to the contrary does not appear reasonable. [n1] In any event, the fact that the Authority had not previously addressed the particular legal arguments raised in this case, does not make the legal theory a "novel" theory worthy of litigation. As noted by the majority, "novelty" does not necessarily create the justificat ion for the denial of fees under the EAJA. See, AFGE Local,495.

The General Counsel was understandably perturbed by the union's failure to reinstate Bradley immediately upon receipt of the Authority's order, but the second ULP prosecution ignores the institutional prerogatives of the union to pursue disciplinary proceedings consistent with its constitution, so long as it is not for any reason prohibited by the Statute. Since the complaint did not allege that discipline was initiated for any reason prohibited by the Statute, the fact that Bradley was a non-member did not matter and was not really an issue.

The facts of the case do not present anything that would overcome the frailties of the General Counsel's legal theories, so as to justify pursuit of this complaint. This is not a case where the union was flouting the Authority's order for the purpose of grinding a political axe. Instead, the union was addressing an employee whose tenure as a union officer was marked by financial improprieties, as determined by a DOL investigation and the union disciplinary proceedings. In addition, the litigation of this case ignored the fact that the union had retroactively reinstated the employee, effective until her proper suspension from membership. Notice of the reinstatement was dated December 9, 1993, and the General Counsel issued his complaint on December 15, 1993. Retroactive reinstatement until the date of the suspension provided the basis for the charging party to receive any benefits of union membership to which she would have been entitled, for the period of valid entitlement. [n2] What more could have been sought, except enforcement, which lies only with the court?

I do not agree that even if one were to reject the General Counsel's position as not substantially justified, special circumstances warrant the denial of fees. Essentially, the majority is saying that if the union had complied timely, the second case would have been avoided. In contrast, I think the union's compliance, although later than it should have been, obviated the need for the second case. Reinstatement was effected before the complaint was issued in this matter. Once the union had complied with retroactive reinstatement, there was nothing more to be gained by prosecuting the Union for having taken action consistent with its statutory and constitutional rights to discipline members and former members for financial malfeasance while in office. I do not agree that the reinstatement to membership - as opposed to official office - posed less of a threat to the union as an institution. Most unions, mindful of the need to prevent the appearance of condoning corruption, would find a return to membership as troubling as a return to office under the circumstances of this case.

In sum, the Administrative Law Judge correctly viewed this case as an attempt to enforce the first Authority order through the unfair labor practice proceedings. The Judge's rejection of the General Counsel's position is based on a reasoned assessment of our Statute and relevant precedent. I think the majority errs in taking a contrary view. In addition, the decision to deny fees does not give proper weight to the union's institutional interest and need to respond to a breach of fiduciary duties by a former officer. Contrary to the majority's conclusion, I place a special emphasis on this last point under the general equitable principles that are applied in evaluating any special circumstances. The union's determination to address a fiduciary breach was not only permitted by its constitution, but was itself a fiduciary responsibility. While I do not condone the delay in implementation of the reinstatement order, I disagree with the majority's view that prosecution of the second unfair labor practice complaint was a justifiable response under these circumstances. Accordingly, for the reasons stated above, I would approve the Judge's order to grant fees to the union.

File 1: Authority's Decision in 55 FLRA No. 71

File 2: Opinion of Member Wasserman

File 3: ALJ's Decision

Footnote # 1 for
55 FLRA No. 71

• Opinion of Member Wasserman

The Authority generally will follow NLRB precedent, when our Statute is similar to the NLRA. U.S. Geological Survey and Caribbean District Office, San Juan, Puerto Rico, 50 FLRA 548, 550 (1995), citing, U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area Office, Gallup, New Mexico, 45 FLRA 646, 652 (1992). In my view, the language of 5 U.S.C. § 7116(c) and 29 U.S.C. § 158(b)(1) is close enough to have supported the assumption that private sector law would be followed. Both statutes make clear that membership decisions are the union's to make, consistent with its internal procedures. Thus, judicial interpretation of the interplay between membership and discipline in the private sector provides useful guidance to us, and the General Counsel's questioning of the Respondent's rights in this case lacks substantial justification.

Footnote # 2 for
55 FLRA No. 71

• Opinion of Member Wasserman

There is no claim that the employee's rights in the disciplinary proceedings were diminished as a result of her non-member status. In any event, the Department of Labor has jurisdiction over union disciplinary cases as a standard of conduct matter. 5 U.S.C.
§ 7120(a)(1); 29 C.F.R. Parts 457 and 458.

[ v55 p439 ]

Office of Administrative Law Judges

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 987

Respondent

and

NEDRA T. BRADLEY, An Individual

Charging Party

Case No. AT-CO-31253

Stuart A. Kirsch, Esquire

For the Respondent

Richard S. Jones, Esquire

For the General Counsel

Before: WILLIAM B. DEVANEY

Administrative Law Judge

DECISION

ON APPLICATION FOR ATTORNEY FEES

Statement of the Case

This is a proceeding for attorney fees by Respondent under the Equal Access to Justice Act, 5 U.S.C. § 504 (hereinafter referred to as, "EAJA") and the Rules and Regulations of the Federal Labor Relations Authority thereunder, 5 C.F.R., Part 2430 (5 C.F.R. § 2430.1, et seq.).

The Authority issued its decision in this case on September 10, 1997, 53 FLRA 364 (1997), in which it held, in part, as follows:

"We agree with the Judge's conclusion that the failure to comply with an Authority remedial order is not itself an unfair labor practice. Issues of noncompliance with an Authority remedial order that has been enforced in a court of appeals are properly dealt with in contempt proceedings before the court. . . .

"We also agree with the Judge's recommended holding that a union's right to enforce discipline under the second sentence of section 7116(c) of the Statute extends to discipline, such as the suspension and restitution here at issue, of a nonmember for conduct occurring while the individual was a member. . . ." (53 FLRA at 369).

Thereafter, on September 17, 1997, Respondent mailed its Application For Attorney Fees; On October 21, 1997, General Counsel mailed his Answer To Respondent's Application For Attorney Fees; and on January 9, 1998, the Authority issued an Order Referring Case to the Office of Administrative Law Judges for further processing pursuant to 5 C.F.R. § 2430.7(a); and the application has, pursuant to § 2430.7(a) of the Rules and Regulations, been referred to the undersigned as the Administrative Law Judge who heard the proceeding upon which the application is based.

The American Federation of Government Employees, AFL-CIO, filed an undated petition for amendment of the Authority's Rules and Regulations, pursuant to §§ 2429.28 and 2430.5, which was postmarked September 17, 1997, and received by the Authority on September 23, 1997, and which has been docketed by the Authority as O-MC-18. This petition seeks to increase the maximum rate for attorney fees under the EAJA, which rate, pursuant to § 2430.4(a) of the Rules and Regulations, may not exceed $75.00 per hour, whereas, § 504(b)(1) of the EAJA, 5 U.S.C. § 504(b)(1), was amended in 1996 to permit fees not in excess of $125.00. Further, the petition seeks not only to have the maximum rate for attorney fees apply to future cases, but also to its application herein.

1. Applicable Law and Regulations

§ 504(a)(1) of the EAJA provides, in relevant part, as follows:

"(a)(1) 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 made an award unjust. . . ." 5 U.S.C. § 504(a)(1) (Emphasis supplied).

The Authority's implementing Rules and Regulations provide, in part, as follows:

§ 2430.1 Purpose.

". . . An eligible party may receive an award when it prevails over the General Counsel, unless the General Counsel's position in the proceeding was substantially justified, or special circumstances make an award unjust. . . ." (5 C.F.R. § 2430.1) (Emphasis supplied).

"§ 2430.2 Proceedings affected; eligibility for award.

"(a) The provisions of this part apply to unfair labor practice proceedings pending on com- [ v55 p440 ] plaint against a labor organization at any time since October 1, 1981.

"(b) A respondent in an unfair labor proceeding which has prevailed in the proceeding, or in a significant and discrete portion of the proceeding, and who otherwise meets the eligibility requirements of this section, is eligible to apply for an award of attorneys fees and other expenses allowable under the provisions of § 2430.4 of these rules.

"(1) Applicants eligible to receive an award in proceedings conducted by the Authority are any partnership, corporation, association, or public or private organization with a net worth of not more than $5 million ($7 million in cases involving adversary adjudications pending on or commenced on or after August 5, 1985) and not more than 500 employees. . . ." (5 C.F.R. § 2430.2)

"§ 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. . . ." (5 C.F.R. § 2430.3(a)) (Emphasis supplied).

"§ 2430.4 Allowable fees and expenses.

"(a) No award for the fee of an attorney or agent under these rules may exceed $75.00 per hour. . . ." (5 C.F.R. § 2430.4).

Plainly, Respondent was the prevailing party in the adversary unfair labor practice proceeding for which attorney fees are sought and the application and supporting documents establish, which General Counsel does not dispute, that applicant meets all eligibility requirements of the EAJA and the Authority's implementing Rules and Regulations. There isno contention that Respondent unduly or unreasonably protracted the proceeding. Nor does General Counsel challenge the amount of attorney fees sought. General Counsel's position is that its position in initiating and litigating the proceeding was reasonable. In American Federation of Government Employees, Local 1857, AFL-CIO (Sacramento Air Logistics Center), North Highland, California, 48 FLRA 900, (1993)(hereinafter, "AFGE, Local 1857"), the Authority stated,

"In order to avoid the imposition of attorney's fees under the EAJA, the General Counsel has the burden of proving that his position was substan-tially justified.' 5 U.S.C. § 504(a)(1). The U.S. Supreme Court has stated thatsubstantially justified' means having a reasonable basis both in law and fact[,]' orjustified to a degree that could satisfy a reasonable person.' Pierce v. Underwood, 487 U.S. 552, 565 (1988). As there were no facts in dispute, the only question before us is whether the General Counsel propounded a theory that has a reasonable basis in law. In this regard, we note that in American Federation of Government Employees, Local 495, AFL-CIO (Veterans Adminis-tration Medical Center, Tucson, Arizona), 22 FLRA 966 (1986), the Authority stated that the EAJA was not intended to deter the General Counsel from advancing `novel or untested legal theories and cases . . . .' Id. at 977." (48 FLRA at 901).

The "position" of the government includes the action on which the litigation is based, as well as the positions the government takes during the litigation. Oregon Natural Resources Council v. Madigan, 980 F.2d 1330, 1331 (9th Cir. 1992). The prevailing party may recover a partial award if the agency's position was not substantially justified in only one portion of the proceedings. Europlast Ltd. v. NLRB, 33 F.3d 16, 17 (D.C. Cir. 1994) (citing McDonald v. Washington, 15 F.3d 1126, 1129-30 (D.C. Cir. 1994)); Leeward Auto Wreckers, Inc. v. NLRB, 841 F. 2d 1143 (D.C. Cir. 1988).

2. General Counsel's positions were not justified

The facts in this case were stipulated by the parties. Therefore, as in American Federation of Government Employees, Local 1857, AFL-CIO, supra, "As there were no facts in dispute, the only question before us is whether the General Counsel proposed a theory that has a reasonable basis in law." (48 FLRA at 901).

(a) Alleged non-compliance with prior Authority Order.

Paragraph 12 of the Amended Complaint [n1] alleged:

"12. During the time period covered by this ccmplaint, Bradley was not a member of Respondent because Respondent did not comply with the Authority's order described in paragraph 11, i.e., the Order of the Authority in 46 FLRA 1048 (1992)." (G.C. Exh. 1(l)). [ v55 p441 ]

Paragraph 14 of the Amended Complaint alleged that by the acts and conduct in Paragraph 12, Respondent violated
§§ 16(b)(8) and 16(c) of the Statute, 5 U.S.C. §§ 7116(b)(8) and (c); and Paragraph 15 of the Amended Complaint, in like manner, alleged violation of § 16(b)(1) of the Statute, 5 U.S.C. § 7116(b)(1).

No doubt recognizing that neither the failure to comply with an Authority remedial order nor non-compliance with an Authority remedial order enforced in a Court of Appeals constituted a reasonable basis for its litigation of this proceeding [n2] , General Counsel asserts that his position really was that, ". . . discipline by expulsion while the Union was under a remedial order to re-admit the employee to membership. . . ." was the violation litigated. (General Counsel's Answer To Respondent's Application For Attorney Fees (hereinafter referred to as, "G.C.'s Answer")), p. 8. This assertion, at best, is a negative pregnant. Indeed, the transparency of the assertion is shown by the quite specific language of Paragraph 12 of the Complaint, ". . . . Respondent did not comply with the Authority's order. . . ." (G.C. Exh. 1(l)); and by General Counsel's further statement, by way of example, ". . . based on the plain language of the remedial order . . . and undisputed fact that the Union had not unconditionally restored her membership prior to taking discipline. . . ." (G.C.'s Answer p. 10). General Counsel, notwithstanding his effort to obscure his purpose, was seeking to enforce the prior order of the Authority by asserting that discipline pursuant to § 16(c) of the Statute, 5 U.S.C. § 7116(c), was unlawful because Respondent had not complied with the prior order. As the Authority stated, the failure to comply with an Authority remedial order is not itself an unfair labor practice and it most assuredly does not become an unfair labor practice because Respondent takes action authorized by the Statute, i.e. ". . . enforcing discipline in accordance with procedures under its constitution or bylaws. . . ." (5 U.S.C. § 7116(c)). The Order of the Authority, in 46 FLRA 1048, was enforced by the Court of Appeals for the Eleventh Circuit and if it were not complied with the Authority could have asked the Court to punish the violation of its decree as a contempt. The jurisdiction conferred upon the court is exclusive. 5 U.S.C. § 7123(c).

(b) Enforcement of discipline in accordance with a union's constitution and bylaws is not an unfair labor practice.

Paragraph 13 of the Amended Complaint alleged that,

"13. On August 23, 1993, the Respondent . . . notified Bradley that the Respondent was not going to allow Bradley to become a member of Respondent for at least five (5) years." (G.C. Exh. 1(l), Par. 13).

Paragraph 14 of the Amended Complaint asserted that Bradley was denied membership in violation of § 16(c) of the Statute, 5 U.S.C. § 7116(c), which violated § 16(b)(8) of the Statute, 5 U.S.C. § 7116(b)(8); and Paragraph 15 of the Amended Complaint asserted that Respondent interfered with, restrained and coerced Bradley in violation of
§ 16(b)(1) of the Statute, 5 U.S.C. § 7116(b)(1).

The parties stipulated that Respondent, in accordance with its constitution and bylaws, brought disciplinary charges against Ms. Bradley for conduct alleged to have occurred while she was an officer and member; that Respondent conducted its disciplinary proceedings in strict compliance with its constitution and bylaws; that, as the result of the disciplinary proceedings, the membership decided that Ms. Bradley be suspended from membership for a period of five years after she restored to the Union funds she had allegedly misappropriated; and Ms. Bradley was notified of the decision, and of her appeal rights, which Ms. Bradley did not exercise, by letter dated August 23, 1993.

General Counsel made three assertions: First, that § 16(c), ". . . does not grant the Union such broad control over membership. There, only two specific reasons . . . [failure to meet reasonable occupational standards uniformly required for admission; or failure to tender dues] . . . can justify denying . . . union membership in the federal sector." Second, Article XVIII, Section 1 of the AFGE National Constitution, ". . . vests jurisdiction in a Local to convene a trial only if the person affected is a member" and Ms. Bradley was not a member when the disciplinary proceedings were undertaken. Third, disciplinary proceedings against a non-member are impermissible under § 16(c) of the Statute. [ v55 p442 ]

Because the law is clear, as decisions of the Assistant Secretary under the substantially like provision of Section 19 of Executive Order 11491, decisions of the Authority, under § 16(c) of the Statute, and decisions of the National Labor Relations Board and of the Courts under the substantially like provision of § 8(b)(1)(A) of the National Labor Relations Act, 29 U.S.C. § 158(b)(1)(A), e.g., Local 1858, American Federation of Government Employees (Redstone Arsenal, Alabama), A/SLMR No. 275, 3 A/SLMR 274, 277 (1973) (hereinafter, "Redstone Arsenal"); American Federation of Government Employees, Local 945, AFL-CIO (Veterans Administration Medical Center, Tucson, Arizona) [Linda S. Moore], Case No. 8-CO-20006-2, 30 Adm. Law Judge Dec. Rep., Sept. 2, 1983 (hereinafter, "VA Med. Center, Tucson"); American Federation of Government Employees, Local 2000, AFL-CIO, 8 FLRA 718 (1982); National Association of Government Employees, Local R5-66, 17 FLRA 796, 805-813 (1985); International Typographical Union, 86 NLRB 951 (1949); Meat Cutters Union, Local 81, United Food and Commercial Workers International Union (McDonald Meat Co.), 284 NLRB 1084 (1987); Scofield v. NLRB, 394 U.S. 423 (1969), show, the concluding sentence of § 16(c) that, "This subsection does not preclude any labor organization from enforcing discipline under its constitution or bylaws to the extent consistent with the provisions of this chapter": (a) specifically authorizes disciplinary action, including suspension from union membership, for reasons other than the failure to meet occupational standards or the failure to tender dues; (b) disciplinary action against a non-member is authorized for conduct occurring while a member; and (c) a local union has jurisdiction to institute proceedings against a non-member for conduct while the person was a member.

General Counsel's principal argument was that the proceedings against Ms. Bradley were invalid because she was not a member when the proceedings were brought. But, the principle long had been established that discipline of a non-member is permitted for conduct that occurs while a member. Thus, the Assistant Secretary of Labor for Labor-Management Relations, in Redstone Arsenal, supra, stated, in part, as follows:

". . . Under Section 19(c) of the Order [footnote omitted] a labor organization has the right to enforce discipline in accordance with procedures under its constitution or by-laws which conform to the requirements of the Order. Where an individual is a member of the labor organization at the time of the improper conduct, the labor organization may enforce discipline against the individual member irrespective of whether he subsequently has terminated his membership. Thus, in my view, the termination of membership in a labor organization does not extinguish a labor organization's right to enforce discipline against a former member for improper conduct prior to the termination of membership. . . ." (3 A/SLMR at 276-277).

In the only previous case under the Statute, Judge Dowd, in VA Med. Center, Tucson, supra, in like manner, held that a union has jurisdiction to institute disciplinary proceedings against a non-member for conduct while a member, stating, in part, that,

". . . Moore could not deprive the Union from jurisdiction to institute a disciplinary proceeding simply because she chose to resign voluntarily. . . ." (slip opinion at p. 13).

Further, the National Labor Relations Board and the Courts consistently had held that under the substantially like proviso to § 8(b)(1)(A) of the NLRA, 29 U.S.C. § 158(b)(1)(A), a union can lawfully discipline former members for improper conduct that occurred while he, or she, was a member, e.g., Pattern Makers Ass'n of LA, 199 NLRR 96 (1972); Meat Cutters Union, Local 81, United Food and Commercial Workers International Union (McDonald Meat Co.), 284 NLRB 1087 (1987); NLRB v. Allis Chalmers Mfg. Co., 388 U.S. 175 (1967); Scofield v. NLRB, 394 U.S. 423 (1969).

Consequently, I rejected General Counsel's assertion and the Authority agreed, stating, in part, that,

"We also agree . . . that a union's right to enforce discipline under the second sentence of section 7116(c) of the Statute extends to discipline, such as the suspension and restitution here at issue, of a nonmember for conduct occurring while the individual was a member. . . ." (53 FLRA at 369).

General Counsel does not raise this issue in his Answer to Respondent's Application For Attorney Fees as justification for prosecuting this case. Nevertheless, because it constituted a major part of General Counsel's case, I have considered this phase of his case. Litigation of an issue, well settled in Executive Order law, in decisions under the Statute and in cases under the substantially like provision of the NLRA, solely on the basis that the Authority, as a body, has not passed on it, means that General Counsel, vis-a-vis liability for attorney fees under the EAJA, acts at his peril. Having failed at all levels, General Counsel's position was not substantially justified within the meaning of the EAJA. [ v55 p443 ]

3. Litigation of novel or untested legal theories

The Office of Administrative Law Judges, long before there was an EAJA, has always been well aware of the need for what we have called "elucidating litigation" to flesh out and illuminate provisions and applications of this and other statutes or, as the Authority stated in AFGE, Local 1857, supra, ". . . whether the General Counsel propounded a theory that has a reasonable basis in law. . . .", 48 FLRA at 901, as, ". . . General Counsel must not be deterred from advancing novel or untested legal theories. . . . Indeed, the `special circumstances' proviso of the EAJA was intended to prevent deterrence.", American Federation of Government Employees, Local 495, AFL-CIO (Veterans Administration Medical Center, Tucson, Arizona) [Linda S. Moore], 22 FLRA 966, 977 (1986) (this was the application for attorney fees in VA Med. Center, Tucson, supra, to which no exceptions were filed).

The fallacy of General Counsel's argument here is that his "theory", that discipline under § 16(c) of the Statute is subject to compliance with a prior Authority Order, has no reasonable basis in law. The decision, not to enforce its order through contempt proceedings, created no right to enforce that order through unfair labor practice procedures. As stated above, the Statute, which in this regard is wholly like the provisions of § 10(e) of the NLRA, 29 U.S.C. § 160(e), gives the Authority no power whatsoever to enforce its orders; rather, enforcement is placed in the United States Courts of Appeals. § 23, 5 U.S.C. § 7123. Indeed, ". . . Upon the filing of the record with the court, the jurisdiction of the court shall be exclusive. . . ." § 23(e), 5 U.S.C. § 7123(e). Of course, here, the record was filed with the Court of Appeals for the Eleventh Circuit before the original Complaint issued and more than a year before the Amended Complaint issued, the Court had issued its decision enforcing the Authority's December 31, 1992, Order. Accordingly, the General Counsel, without power to enforce the prior Authority Order and utterly devoid of jurisdiction of the prior order, nevertheless prosecuted the asserted non-compliance with that Order as an unfair labor practice. Whether the Union had, or had not, complied with the prior Authority Order was not within the province of the Authority to determine because, ". . . the jurisdiction of the court shall be exclusive and its judgment and decree shall be final. . . ." [except for review by the Supreme Court]. § 23(c), 5 U.S.C. § 7123(c); Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 270 (1940). The Union should not have been forced into the expense of defending against General Counsel's action which was not substantially justified nor were special circumstances shown that would make an award unjust.

4. Attorney Stuart A. Kirsch's affidavit and attached Statement of Hours show a total of 141 hours expended on behalf of Respondent from September 8, 1993, through September 15, 1997. From the stated, "Nature of Service Rendered", the following hours, by the nature of the activity involved, appear to have involved Case No. 4-CO-10021; are not hours of service in this Case; and, accordingly, should be excluded:

Date No. of Hours

2-8-94 1.0

3-6-94 .5

3-16-94 .5

4-12-94 .5

4-21-95 .5

4-25-94 1.0

4-27 & 28-94 4.0

12-14-95 .5

8.5 hours

In the absence of any specific showing to the contrary, I conclude from Mr. Kirsch's affidavit and Statement of Hours that he expended 132.5 hours on this matter and that such time was reasonably expended.

Under the EAJA, the Union may recover market rate for fees up to the statutory limit. The market rate has been shown to be in excess of the statutory limit. Accordingly, the statutory limit, as applicable here, is $75.00 per hour [n3] . Multiplying the number of hours found reasonably expended (132.5) by $75.00 results in a fee of $9,937.50. Based on the foregoing, it is recommended that the Authority issue the following:

ORDER

As provided in 5 U.S.C. § 504 and in 5 C.F.R. § 2430.14 of the Rules and Regulations of the Authority, the Authority grants an award to the AFGE Legal Representation Fund in the amount of $9,937.50.

_________

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: March 17, 1998

Washington, DC

File 1: Authority's Decision in 55 FLRA No. 71

File 2: Opinion of Member Wasserman

File 3: ALJ's Decision

Footnote # 1 for
55 FLRA No. 71

• ALJ's Decision

The original Complaint issued on December 15, 1993 (G.C. Exh. 1(c)). Thereafter, on January 28, 1994, the United States Court of Appeals for the Eleventh Circuit, in Case No. 93-8222, American Federation of Government Employees, Local 987, AFL- CIO v. FLRA, in an unpublished decision, granted the Authority's application for enforcement of its December 31, 1992, order in FLRA Case No. 4-CO-10021 (46 FLRA 1048 (1992)). More than a year later, the Amended Complaint herein was issued on February 1, 1995 (G.C. Exh. 1(l)).

Footnote # 2 for
55 FLRA No. 71

• ALJ's Decision

For reasons stated by the Authority herein, 53 FLRA at 369; by the Supreme Court, Myers v. Bethlehem Shipbuilding Corporation
, 303 U.S. 41, 48-49 (1938); Amalgamated Utility Workers v. Consolidated Edison Company, 309 U.S. 261, 265-266 (1940); and, by virtue of § 23(c) of the Statute, 5 U.S.C. § 7123(c).

Footnote # 3 for
55 FLRA No. 71

• ALJ's Decision

The 1996 amendment to EAJA increased the statutory limit to $125.00, but is applicable only to adjudications commenced on or after the date of enactment, March 29, 1996. (P.L. 104-121, 110 STAT. 862). Section 233 of P.L. 104-121 provided,

"The amendments . . . which amended this section and Section 2412 of Title 28 . . . shall apply to civil actions and adversary adjudications commenced on or after the date of the enactment of this subtitle [Mar. 29 1996]." (5 U.S.C.A. § 504)(Emphasis supplied).