Spencer v. NLRB

• Decision Date: 01 July 1982
• Docket Number: Civ. A. No. 79-2453.
• Citation: 548 F. Supp. 256
• Parties: Stanley SPENCER, et al., Plaintiffs, v. The NATIONAL LABOR RELATIONS BOARD, et al., Defendants.
• Court: U.S. District Court — District of Columbia

548 F. Supp. 256

Stanley SPENCER, et al., Plaintiffs, v. The NATIONAL LABOR RELATIONS BOARD, et al., Defendants.

Civ. A. No. 79-2453.

United States District Court, District of Columbia.

July 1, 1982.

Paul Douglas Kamenar, Washington, D. C., Michael Avakian, Center on National Labor Policy, Inc., North Springfield, Va., for plaintiffs.

Aileen Armstrong, Asst. Gen. Counsel for Sp. Lit., N. L. R. B., Washington, D. C., for defendants.

MEMORANDUM OPINION

NORMA HOLLOWAY JOHNSON, District Judge.

Defendant The National Labor Relations Board has moved the Court to dismiss the instant action on grounds of mootness. Plaintiffs do not oppose the motion to dismiss, but have filed a motion for costs and attorneys' fees pursuant to 28 U.S.C.S. § 2412 (Law.Co-op.Supp.1982), which codifies portions of the recently enacted Equal Access To Justice Act, Pub.L.No. 96-481, Title II, 94 Stat. 2325 (1980), effective October 1, 1981. For the reasons stated herein, the Court agrees that there is no longer a genuine case or controversy underlying this litigation; accordingly, it will grant defendant's motion to dismiss the action. The Court has also concluded that although plaintiffs are entitled to a judgment for reasonable costs incurred in advancing this litigation, they are not entitled to an award of attorneys' fees under the Equal Access To Justice Act. Plaintiffs' application for fees will therefore be denied.

I. The National Labor Relations Board's Motion To Dismiss As Moot

A. Background

Plaintiffs, a group of qualified engineers at the Utah Power & Light Company in Salt Lake City, Utah, filed this action on September 17, 1979, seeking, inter alia, a declaratory judgment that they are "professional employees" within the meaning of section 2(12) of the National Labor Relations Act, 29 U.S.C. § 152(12) (1976) (hereinafter "the NLRA") and an injunction requiring the National Labor Relations Board (hereinafter "the NLRB" or "the Board") to either conduct a decertification election in response to the petition that plaintiffs had previously filed with the Board,¹ or decide whether they were in fact "professional employees" entitled to vote separately with respect to their previous inclusion in a "mixed" bargaining unit. See 29 U.S.C. § 159(b)(1).² On November 16, 1979, the Board answered the complaint by denying that plaintiffs were entitled to any of the relief requested and maintaining, inter alia, that this Court lacked subject matter jurisdiction over the case, and that plaintiffs had failed to state a claim upon which relief could be granted. Thereafter the parties filed cross-motions for summary judgment.

During the pendency of the respective motions for summary judgment, two of the named plaintiffs in this action filed a second petition for a decertification election on behalf of all qualified engineers at the wholly unionized Utah Power and Light Company.³ A hearing on that petition was held on April 10, 1981, and the matter was subsequently transferred directly to the Board for a disposition. On September 30, 1981, the Board issued a decision and order finding that plaintiffs qualified as "professional employees" under section 2(12) of the NLRA and were entitled to a separate election on the issue of continued union representation. See Utah Power & Light Company, 258 NLRB 138 (1981); Exhibit B To The Board's Motion To Dismiss As Moot. The Board's Regional Director conducted an election on October 29, 1981, and the engineers voted overwhelmingly against continued representation by the incumbent union. Exhibit D To The Board's Motion To Dismiss As Moot.

B. The Mootness Issue

The fundamental principle that Article III courts lack jurisdiction to consider the merits of a moot case stems from the constitutional command that the judicial power extends only to actual "cases" or "controversies". Powell v. McCormack, 395 U.S. 486, 496 n. 7, 89 S.Ct. 1944, 1950 n. 7, 23 L.Ed.2d 491 (1969); Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968). The mootness doctrine requires courts to dismiss cases where "the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. at 496, 89 S.Ct. at 1944; see also Arizona Electric Power Cooperative, Inc. v. Federal Energy Regulatory Commission, 203 U.S.App.D.C. 220, 226, 631 F.2d 802, 808 (1980); Reporters Committee for Freedom Of The Press v. Sampson, 192 U.S.App.D.C. 335, 341, 591 F.2d 944, 950 (1978). Litigation ordinarily becomes moot "whenever it tenders for judicial resolution no more than an abstract or hypothetical question." Nader v. Butz, 154 U.S.App.D.C. 178, 180, 474 F.2d 426, 428 (1972). This may occur when events transpiring after the challenged action obviate or preclude the possibility of meaningful relief. Public Media Center v. Federal Communications Commission, 190 U.S.App.D.C. 425, 429, 587 F.2d 1322, 1326 (1978); Alton & Southern Railway Co. v. International Association of Machinists & Aerospace Workers, 150 U.S.App. D.C. 36, 41-42, 463 F.2d 872, 877-78 (1972). In that respect, the mootness doctrine requires dismissal whenever "1) it can be said with assurance that there is no reasonable expectation ... that the alleged violation will recur, ... and 2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979).

Each of the aforementioned conditions for invoking the mootness doctrine has been satisfied here. Since the onset of this civil action, plaintiffs have received from the Board all of the relief that they sought in federal court; the Board has determined that they are "professional employees" as defined by the NLRA, and has conducted a secret ballot decertification election on their behalf. Thus, even assuming arguendo that the Board's earlier failure to adjudicate plaintiffs' professional status and to order a decertification election constituted an actionable violation of a specific statutory prohibition, see Leedom v. Kyne, 358 U.S. 184, 188-89, 79 S.Ct. 180, 183-4, 3 L.Ed.2d 210 (1958), that putative violation has been fully corrected by the Board's intervening decision to grant plaintiffs' decertification petition. There is no reasonable expectation that the alleged violation will recur, and there is no longer a "case" or "controversy" justifying the exercise of this Court's decisional and remedial authority. The Board's motion to dismiss must be granted.

II. Plaintiffs' Motion For Costs And Attorneys' Fees

A. Costs

28 U.S.C. § 2412(a)(1976) provides as follows:

Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title 28 U.S.C. § 1920, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. A judgment for costs when taxed against the United States shall, in an amount established by statute, court rule, or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation.

It is manifestly clear under analogous costshifting statutes that the phrase "prevailing party" should not be limited to cases in which a party has prevailed through entry of final judgment following a full trial on the merits. For example, the Supreme Court has recently noted that a litigant may be regarded as having "prevailed" for purposes of an award of costs and attorneys' fees under civil rights statutes even if the action is settled by stipulation or consent decree rather than adjudicated on the merits. Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980);⁴ see also Foster v. Boorstin, 182 U.S.App.D.C. 342, 561 F.2d 340 (1977). Moreover, several cases arising both before and after the Maher decision have generally held that it is sufficient for purposes of an award of costs and attorneys' fees that the plaintiff succeeded on the "central issue" in his complaint, or achieved some of his objectives by compromise. See e.g., Collins v. Thomas, 649 F.2d 1203, 1205 (5th Cir. 1981); Young v. Kenley, 641 F.2d 192, 194-95 (4th Cir. 1981); Watkins v. Mobile Housing Board, 632 F.2d 565, 567 (5th Cir. 1980); Bonnes v. Long, 599 F.2d 1316, 1318 (4th Cir. 1979); Bradford v. Blum, 507 F.Supp. 526, 529-30 (S.D.N.Y.1981).

While plaintiffs in this action did not secure a favorable decision on the merits of their central legal contention that that Board's denial of their initial decertification petition violated a clear, controlling, and specific provision of the NLRA, they were ultimately successful in obtaining all of the relief that they sought in a judicial forum; namely, a finding by the Board that they were indeed "professional employees" within the purview of 29 U.S.C. § 152(12) and a resultant decision to afford them a separate decertification election. Even if there were no causal nexus whatsoever between the actions of the Board and the prosecution of this lawsuit by the plaintiffs, the Court believes that the Board's intervening decision to effectively moot this action by granting plaintiffs the relief requested and the virtually voluntary dismissal that has followed warrant the conclusion that plaintiffs are "prevailing parties" under 28 U.S.C. § 2412(a). This view fully accords with the trend in recent decisions toward an expansive and liberalized approach to the definition of a "prevailing party" under various fee-shifting and costshifting statutes.

In view of the foregoing, the Court finds that plaintiffs are entitled to a judgment for reasonable costs, excluding attorneys' fees, incurred in advancing this civil action. An award of costs will be contingent upon...