Russell v. National Mediation Bd.

• Decision Date: 28 June 1985
• Docket Number: No. 84-1345,84-1345
• Citation: 764 F.2d 341
• Parties: 119 L.R.R.M. (BNA) 3217 Laurence G. RUSSELL, William L. Hanna and Eddie D. Langwell, Plaintiffs-Appellants, v. NATIONAL MEDIATION BOARD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 341

764 F.2d 341

119 L.R.R.M. (BNA) 3217

Laurence G. RUSSELL, William L. Hanna and Eddie D. Langwell, Plaintiffs-Appellants, v. NATIONAL MEDIATION BOARD, Defendant-Appellee.

No. 84-1345.

United States Court of Appeals, Fifth Circuit.

June 28, 1985.

Robert F. Gore, Rex H. Reed, Nat'l Right to Work Legal Defense Foundation, Inc., Springfield, Va., John Cosmic, Amarillo, Tex., for plaintiffs-appellants.

Mark W. Pennak, William Kanter, Dept. of Justice, Civil Div., Washington, D.C., for Nat. Mediation Bd.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, REAVLEY and HIGGINBOTHAM, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellants Laurence G. Russell, et al. won their action against the National Mediation Board (the "Board") on their prior appeal to this court. They now appeal the district court's refusal to award them attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412(d)(1)(A). We affirm the district court's denial of attorney's fees, holding that although the appellants timely filed their application for fees, a fee award is inappropriate because the Board's position in the litigation was substantially justified within the meaning of subsection (d)(1)(A) of the EAJA.

FACTS AND PROCEDURAL HISTORY

This case is before the Fifth Circuit for the second time. In Russell v. National Mediation Board, 714 F.2d 1332 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984), another panel of this court decided the merits of the case in the appellants' favor. The appellants subsequently applied to the district court for attorney's fees under subsection (d)(1)(A) of the EAJA. They now appeal the district court's denial of their application.

We are faced here with two difficult and unsettled questions of statutory interpretation. First, in order to evaluate whether the appellants timely filed their application for attorney's fees, we must determine precisely the meaning of the phrase "final judgment in the action" as it appears in subsection (d)(1)(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 ...

28 U.S.C. Sec. 2412(d)(1)(B). Second, if we find that the application for fees was timely, we must then determine whether "position of the United States," as that phrase appears in subsection (d)(1)(A), refers to the government's position in the underlying action or its position in the litigation. Subsection (d)(1)(A) provides in pertinent part:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and expenses ... incurred by that party in any civil action (other than cases sounding in tort) 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. Sec. 2412(d)(1)(A) (emphasis ours). Before addressing these issues of statutory interpretation, however, it is appropriate to describe more fully the facts and procedural history of the case.

In 1943 the police officers and special agents below the rank of captain on the Santa Fe Railroad elected to be represented under the Railway Labor Act by the National Council of Railway Patrolmen's Union, AFL. The Railway Patrolmen's Union was later replaced as representative by its successor in interest, the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees (BRAC). The police officers became dissatisfied with BRAC, and in 1980 some of them decided that they no longer wanted union representation. Accordingly, they gathered 113 authorization cards from the 210 member unit and designated Russell as their representative "for all purposes under the Railway Labor Act."

Russell then filed with the Board an "Application for Investigation of Representational Dispute." He requested that the Board certify him as the police officers' authorized representative in accordance with the Railway Labor Act. BRAC objected to Russell's application on the grounds that it constituted a petition for decertification since Russell had no intention to act as the representative of the police officers. The Board agreed and dismissed Russell's application, stating:

The Railway Labor Act, unlike the National Labor Relations Act, contains no statutory provision for decertification of a bargaining representative [citations]. The Board will not progress an application for investigation of a representation dispute where the applicant lacks the intent to represent the craft or class, if certified, [citation] and will dismiss such an application because it is void ab initio.

Russell and the other appellants filed suit in federal district court in July 1981. They sought a declaration that the Board's action was unlawful, arbitrary, capricious, and an abuse of discretion. They also sought a writ of mandamus to compel the Board to hold a representational election. Finally, they sought an injunction against BRAC and Santa Fe to suspend the requirement of membership in BRAC as a prerequisite to employment with Santa Fe. The district court granted the Board's motion for summary judgment, holding that "[i]t is well established that the Board's decisions regarding representational disputes, made pursuant to Section 2, Ninth, of the Railway Labor Act, are not subject to judicial review." The district court noted two narrow exceptions to this general rule, but found that neither applied.

On the appellants' original appeal, this court, through Judge Jolly, held that while judicial review of the Board's decisions is indeed limited, jurisdiction was present. 714 F.2d 1332. The court then reversed and remanded to the district court with instructions that it direct the Board to process Russell's application. Although Judge Jolly noted at the outset of his opinion that the case was one of first impression, he went on to state that certain of the Board's positions were Orwellian and Kafkaesque, Id. at 1342 n. 11-12, and that the Board had breached a "clear statutory mandate" to process Russell's application. Id. at 1341.

The court of appeals entered its decision on September 22, 1983. On November 10, 1983, BRAC filed a suggestion for rehearing en banc. ¹ Treating it as a petition for a panel rehearing as well as a suggestion for rehearing en banc, the court denied both on November 28, 1983. On February 24, 1984, BRAC filed a petition for writ of certiorari, which the Supreme Court denied on May 21, 1984. Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees v. Russell, --- U.S. ----, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984). Although the Board twice requested and received extensions of time to file a petition for rehearing, it did not avail itself of the opportunity. Nor did it petition for writ of certiorari.

On February 7, 1984, the appellants filed their application for attorney's fees in the district court. In denying the application the court held that although the appellants were prevailing parties and met the financial eligibility requirements of the EAJA, they were not entitled to attorney's fees because the Board's position was substantially justified. The court also held that an award of fees would be unjust in light of the "special circumstance" that the case on the merits was one of first impression. See 28 U.S.C. Sec. 2412(d)(1)(A).

On appeal the appellants challenge the district court's conclusion that the Board's position was substantially justified. While they concede that the Board's litigation position was substantially justified, they contend that under subsection (d)(1)(A) we should look to the position that the Board took in the underlying action (i.e., the refusal to process Russell's application for investigation of a representation dispute) and that that position was not substantially justified. The appellants also challenge the district court's conclusion that special circumstances would make a fee award unjust.

In its appellate brief the Board contends for the first time that the appellants' application for fees was untimely and that the district court and this court therefore lack jurisdiction to consider it. Because this issue calls our subject matter jurisdiction into question, we will address it first. However, some background concerning the EAJA may prove a useful prelude.

I. The Equal Access to Justice Act

On October 1, 1981, Congress enacted the EAJA with the broad purpose of awarding private litigants the expenses of seeking review of or defending against unreasonable government action. United States v. 329.73 Acres, Grenada and Yalobusha Ctys., 704 F.2d 800, 801 (5th Cir.1983, en banc ). Through enactment of the EAJA Congress intended to encourage litigants of limited means to vindicate their rights by challenging regulations or agency actions that they would otherwise comply with in order to avoid paying the costs of litigation. Id. at 802. As Congress stated:

It is the purpose of this title ... to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in specified situations an award of attorney fees, expert witness fees, and other costs against the United States.

EAJA Sec. 202(a), Public L. 96-481, tit. 2, 94 Stat. 2325 (1980). By raising the spectre of adverse judgments for attorney's fees and costs, Congress also intended to provide government agencies an incentive to avoid taking unjustified positions or actions. 704 F.2d at 802.

Congress included an automatic sunset provision by which subsection 2412(d) expired on October 1, 1984. Nevertheless, the subsection continues to apply to any action commenced before that date. EAJA, supra, Sec....