Monark Boat Co. v. N.L.R.B.
| Decision Date | 05 July 1983 |
| Docket Number | No. 82-1962,82-1962 |
| Citation | 708 F.2d 1322 |
| Parties | 113 L.R.R.M. (BNA) 2896, 97 Lab.Cas. P 10,196 MONARK BOAT COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Tim Boe, Jim Hunter Birch, Rose Law Firm, P.A., Little Rock, Ark., for petitioner Monark Boat Co.
William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, David A. Fleischer, Atty., N.L.R.B., Washington, D.C., for respondent.
Before ARNOLD, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BENNETT, * Circuit Judge.
Monark Boat Company petitions for review of an NLRB order dismissing Monark's application for $19,000 in attorneys' fees as the prevailing party against the NLRB in an underlying unfair labor practice case. Monark's application was brought under 5 U.S.C. Sec. 504 (Supp. V. 1981) of the recently enacted Equal Access to Justice Act (EAJA), P.L. 96-481, Title II, 94 Stat. 2325 (1980) 1. The Board, adopting an Administrative Law Judge's findings and decision, dismissed Monark's application as untimely because it was not received by the Board within the prescribed thirty-day time period under 5 U.S.C. Sec. 504(a)(2) of the EAJA. We affirm the decision of the Board.
Section 5 U.S.C. Sec. 504(a)(2) provides that "[a] party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application which shows that the party is a prevailing party and is eligible to receive an award under this section ..." The Board has promulgated interpretive rules and regulations for this statutory time period. Under 29 C.F.R. Sec. 102.148(a) (1982), 2 the Board has provided that the application for attorneys' fees must be "filed ... 30 days after the entry of the Board's final order in the [adversary adjudication proceeding]." "Filing" is accomplished when the Board receives the document to be filed. 29 C.F.R. Sec. 102.114(b). 3 Also involved in this appeal is another Board regulation, 29 C.F.R. Sec. 102.114(a), 4 which provides that "whenever a party ... is required to do some act ... within a prescribed period after service of a notice or other paper is served on him by mail or by telegraph, 3 days shall be added to the prescribed period." (Emphasis added.)
In the present case, the Board entered its final order in the underlying adversary proceeding on October 5, 1981, triggering the running of the thirty-day limitation period under the EAJA as interpreted by 29 C.F.R. Sec. 102.148(a). The Board found that although Monark mailed its application for attorneys' fees on November 5, 1981, the Board did not receive the application until November 6, 1981, thirty-one days after the entry of final order in the underlying proceeding. The Board, therefore, applying 5 U.S.C. Sec. 504(a)(2) as interpreted by Board regulation 29 C.F.R. Sec. 102.148(a), dismissed the application as untimely because it was not received by the Board within thirty days of the Board's order in the underlying adversary proceeding. In doing so, the Board interpreted the thirty-day time limitation under Sec. 504(a)(2) as a jurisdictional requirement, which could not be extended. The Board accordingly declined to apply its regulation 29 C.F.R. Sec. 102.114(a) so as to give Monark an additional three days to file its application for attorneys' fees. The Board also noted that the three-day extension under Sec. 102.114(a) applies only where a party must act within a certain time period "after service." Here, it was not the service but the entry of the Board's final order that marked the beginning of the application filing period under Sec. 102.148(a). Finally, the Board declined to apply the "substantial compliance" doctrine so as to excuse Monark's late filing.
Initially, Monark challenges the Board's finding that the application for attorneys' fees was received on November 6, 1981. Monark asserts, for the first time on this appeal, that its application was received by the Board in Washington, D.C. on November 5, 1981, which was thirty days after the issuance of the Board's order in the underlying proceeding. In support of this claim, Monark asserts that it shipped the application, via express air delivery, from Little Rock, Arkansas on November 5, 1981. Monark has provided no evidence as to when the express delivery company actually delivered the application. Monark also refers to, as newly discovered evidence, the Board's certified list and chronological list of relevant docket entries, which give November 5 as the date of Monark's application for attorneys' fees. Monark suggests that the Board abused its discretion in failing to sua sponte check its files and consider these lists.
Under 5 U.S.C. Sec. 504(c)(2) of the EAJA, a reviewing court may set aside the Board's decision dismissing Monark's application only if the Board abused its discretion. Moreover, this circuit has long recognized that "every presumption of regularity attends the action of the Board." Cupples Co. v. NLRB, 103 F.2d 953, 958 (8th Cir.1939). In this case, we do not believe Monark has shown that the Board abused its discretion in finding that the application was received on November 6, 1981.
In the Board's order of November 17, 1981, referring this case to the ALJ, the Board stated that Monark's application for attorneys' fees had been received on November 6. Monark never challenged this statement during the administrative proceedings before the Board. Generally, an issue cannot be raised in a judicial enforcement proceeding unless it was first raised before the Board, absent a showing of "extraordinary circumstances." See National Labor Relations Act Sec. 10(e) (29 U.S.C. Sec. 160(e)). 5
However, even assuming the alleged previous unavailability of the Board's certified list and its chronological list of relevant documents constitutes an "exceptional circumstance" for failing to raise this claim before the Board, we do not believe the lists establish that the Board abused its discretion in finding that Monark's application was received on November 6, 1981. First, although the lists give November 5 as the date of application for attorneys' fees, they do not state that the application was received on that date. The clerical employee who prepared the lists had no way of knowing when the application was received and she stated in her affidavit that she simply listed the date appearing on the certificate of service. Also, the files in the Executive Secretary's office confirm that the application was received on November 6. Moreover, the Board's finding that the application was received on November 6 is entirely plausible in view of the undisputed fact that Monark shipped its application from Little Rock, Arkansas on November 5, 1981. Monark has offered no evidence that an application shipped from Little Rock, even by express service, would normally reach the Board's offices in Washington, D.C. on the same day during regular business hours. More specifically, Monark failed to provide the express delivery company's delivery records showing that there was "same day delivery." We therefore conclude that Monark has failed to provide a basis for overturning the Board's finding that the application was received on November 6, 1981.
Monark alternatively contends that the Board frustrated the purpose underlying the EAJA in strictly interpreting the thirty-day time limitation provision as a jurisdictional requirement. Monark suggests that although the EAJA is a waiver of sovereign immunity it is also a broad remedial statute aimed at encouraging private parties to challenge government actions that are not "substantially justified"; as such, its thirty-day time limitation provision should be liberally construed.
Specifically Monark urges that the Board erred in interpreting 5 U.S.C. Sec. 504(a)(2) to require that Monark's application be "filed"--i.e., received by the Board--within thirty days of the entry of the final order in the underlying proceeding. 29 C.F.R. Secs. 102.148(a), 102.114(b). First, Monark suggests that, applying a liberal construction to the EAJA, "final disposition," the event beginning the thirty-day count under Sec. 504(a)(2), occurred when Monark received notice of the Board's final order, not when the Board issued its final order in the underlying proceeding. Accordingly, Monark claims that under Board regulation 29 C.F.R. Sec. 102.114(a), it was entitled to an additional three days to file its application for attorneys' fees. Second, Monark urges that the requirement of Sec. 504(a)(2) that "a party ... submit to the agency [its] application," was accomplished when Monark "served or tendered" the application, which under Board regulation 29 C.F.R. Sec. 102.113(a) 6 occurred "the day when the matter served is deposited in the United States mail." Hence, Monark concludes that it "submitted" its application to the Board on November 5, 1981, the date the application was placed in the hands of the express delivery service, and not on November 6, 1981, when the Board received the application. Monark finally contends that its late filing should have been excused because it substantially complied with the statutory time limit.
Initially, addressing the threshold question, we conclude that the Board's interpretation of the EAJA's thirty-day time limitation provision as a jurisdictional requirement is a reasonably defensible interpretation; it neither conflicts with the EAJA's express statutory mandate nor frustrates the Congressional policy underlying the EAJA. See Labor Board v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965); Ford Motor Company v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979...
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