Harrell ex rel. Nat'l Labor Relations Bd. v. Ridgewood Health Care Ctr., Inc.

• Decision Date: 18 May 2016
• Docket Number: CASE NO. 6:14-CV-2075-SLB
• Parties: CLAUDE T. HARRELL, JR., Regional Director of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. RIDGEWOOD HEALTH CARE CENTER, INC.; RIDGEWOOD HEALTH SERVICES, INC., Respondents.
• Court: U.S. District Court — Northern District of Alabama

CLAUDE T. HARRELL, JR., Regional Director

of the National Labor Relations Board, for and on behalf

of the National Labor Relations Board, Petitioner, v. RIDGEWOOD HEALTH CARE CENTER, INC.;

RIDGEWOOD HEALTH SERVICES, INC., Respondents.

CASE NO. 6:14-CV-2075-SLB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA JASPER DIVISION

May 18, 2016

MEMORANDUM OPINION

This case is before the court on Motion for Attorneys' Fees and Costs,¹ filed by respondents, Ridgewood Health Care Center, Inc., and Ridgewood Health Services, Inc. ["the Ridgewoods]. (Doc. 34.)² Petitioner, Claude T. Harrell, Jr., Regional Director of the National Labor Relations Board ["Director"], for and on behalf of the National LaborRelations Board ["NLRB"], opposes the respondents' Motion, arguing his position in this case was substantially justified and, if the court finds that his position was not substantially justified, certain items claimed by respondents are unreasonable.³ (See generally doc. 36.) Upon consideration of the record, the submissions of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that respondents' Motion for Attorneys' Fees and Costs, (doc. 34), is due to be granted in part and denied in part.

Respondents, Ridgewood Health Care Center, Inc. and Ridgewood Health Services, Inc. [the Ridgewoods], ask the court to award them attorneys' fees pursuant to the 28 U.S.C. § 2412(d)(1) of the Equal Access to Justice Act [EAJA], which provides:

(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil action . . . brought by . . . 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.

(B) A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the United States was not substantially justified. Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.

28 U.S.C. § 2412(d)(1). To satisfy the terms of this section, the Ridgewoods must show or allege: (1) they are the prevailing party in this action brought by the United States, (2) their Motion for Attorneys' Fees was timely filed, (3) the position of the United States was not substantially justified, and (4) there are no special circumstances that make an award of attorney's fees unjust. Canady v. Sullivan, 893 F.2d 1241, 1243 (11th Cir. 1990). "The absence of any one of the above factors shall preclude an award of fees." Id. However, if the Ridgewoods demonstrate their entitlement to an EAJA award, "there remains the question whether the amount of the [requested] award is proper." Jean v. Nelson, 863 F.2d 759, 769 (11th Cir. 1988)(emphasis added).

The Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983), set forth the following principals that "are generally applicable in all cases in which Congress has authorized an award of fees to a 'prevailing party:'"⁴

The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.

The district court . . . should exclude from [its] initial fee calculation hours that were not "reasonably expended." . . . Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. "In the private sector, 'billing judgment' is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Copeland v. Marshall, 205 U.S. App. D.C. 390, 401, 641 F.2d 880, 891 (1980)(en banc)(emphasis in original).

Hensley, 461 U.S. at 433-34.

A. SUBSTANTIALLY JUSTIFIED

The Director contends that his position in seeking injunctive relief pursuant to Section 10(j) of the National Labor Relations Act ["NLRA"] was substantially justified because an injunction was necessary to preserve the Board's remedial authority by preventing irreparable harm to employees' statutory rights:

Petitioner had reasonable cause to believe that Respondents had, inter alia, unlawfully refused to hire employees of its predecessor and unlawfully refused to recognize and bargain with Union. Petitioner's case was supported by affidavits, exhibits, the transcript of the administrative hearing, and, ultimately, a decision by the Administrative Law Judge.

Petitioner was also substantially justified in his position that injunctive relief was necessary to preserve the Board's remedial authority by preventingirreparable harm to employees' statutory right to be represented by their chosen Union. Petitioner's position was supported by well-established precedent recognizing the harms that result from a successor employer's refusal to hire employees or recognize their incumbent union as well as by evidence that Respondents' actions were having a "chilling" effect on employees' willingness to support their Union.

(Doc. 36 at 3.)

The Ridgewoods argue, "[B]ecause the Director lacked specific evidence that the unfair labor practices alleged were 'egregious' or that 'without such relief, any final order of the Board will be meaningless or so devoid of force that the remedial purposes of the NLRA will be frustrated,' the Director was not 'substantially justified' in seeking § 10(j) relief in this Circuit, and the Court should grant Respondents' Motion." (Doc. 37 at 2.)

"The government bears the burden of showing that its position was substantially justified." United States v. Jones, 125 F.3d 1418, 1425 (11th Cir. 1997)(quoting City of Brunswick v. United States, 849 F.2d 501, 504 (11th Cir. 1988)) And, "The government's position is substantially justified under the EAJA when it is 'justified to a degree that would satisfy a reasonable person' - i.e. when it has a reasonable basis in both law and fact." Id. (quoting United States v. Douglas, 55 F.3d 584, at 588 (11th Cir. 1995)(quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988))). "'[T]he legal merits of the government's position' does not address simply whether the Government won or lost, because 'the Government . . . could take a position that is substantially justified yet lose.' The issue is not whether the Government's position was correct but whether it was 'reasonable,' which depends largely on the 'clarity of the governing law.'" Nat'l Fed'n of Republican Assemblies v. United States,263 F. Supp. 2d 1372, 1378 (S.D. Ala. 2003)(quoting Pierce, 487 U.S. at 569). The government's position may be "unreasonable under the law of this Circuit," if it reli[es] on a legal theory that has been clearly and repeatedly rejected by [the Eleventh Circuit]." Enerhaul, Inc. v. N.L.R.B., 710 F.2d 748, 751 (11th Cir. 1983).

As set forth in detail in the court's Memorandum Opinion, the law of this Circuit requires the Director to show that an interim injunction, pending the final decision of the NLRB, is "just and proper." N.L.R.B. v. Hartman & Tyner, Inc., 714 F.3d 1244, 1250 (11th Cir. 2013)(citing Arlook v. S. Lichtenberg & Co., 952 F.2d 367, 371 (11th Cir. 1992); Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 1188-89 (5th Cir. 1975)). The former Fifth Circuit, in a decision binding on this court, held:

Section 10(j) is itself an extraordinary remedy to be used by the Board only when, in its discretion, an employer or union has committed such egregious unfair labor practices that any final order of the Board will be meaningless or so devoid of force that the remedial purposes of the Act will be frustrated.

Pilot Freight, 515 F.2d at 1192 (5th Cir. 1975)(emphasis added);⁵ see Arlook, 952 F.2d at 374 ("In clarifying the standards governing § 10(j) and reaching a decision in this case, we do not stray from the principle, followed by our predecessor court and every circuit court thereafter, that injunctive relief pursuant to § 10(j) is an extraordinary remedy, to berequested by the Board and granted by a district court only under very limited circumstances. That essential principle is what dams the potential flood of § 10(j) injunction petitions.")(internal citations omitted; emphasis added). Therefore, under binding circuit precedent, the mere occurrence of unfair labor practices does not prove those unfair labor practices are "egregious" or extraordinary deserving of immediate remedial relief.

In this case, the Director did not present evidence of egregious or extraordinary unfair labor practices. Moreover, he relied on a generalized argument that a § 10(j) injunction was "just...