Rehearing and Rehearing En Banc Denied February 7, 1983.
BUTZNER, Senior Circuit Judge:
Following our decision in Tyler Business Services, Inc. v. NLRB, 680 F.2d 338 (4th Cir.1982), denying enforcement of an order of the National Labor Relations Board, Tyler moved for an award of costs and attorney's fees pursuant to the Equal Access to Justice Act.
The Act requires an award of attorney's fees to a qualified party prevailing
In addition, the legislative history teaches that in cases "where a party has had to engage in lengthy administrative proceedings before final vindication of his or her rights in the courts, the government should have to make a strong showing to demonstrate that its action was reasonable."
Consideration also must be given to the phrase "position of the United States," which is not defined in the Act. We believe "position" should be read to mean the government's position as a party in prosecuting or defending the litigation at whatever level is under review for the awarding of attorney's fees.
The House report on the Act states that in regard to review of agency adjudications, the government must "make a positive showing that its position and actions during the course of the proceedings were substantially justified."
Finally, we must distinguish between the actions of the Board itself and the actions of its general counsel. The general counsel performs the functions of investigation and prosecution, while the Board acts as adjudicator.
The complaint alleged that Tyler's officers violated § 8(a)(1) of the Labor Act on two occasions by threatening employees and that it violated § 8(a)(3) and (1) by discharging an employee, Burton H. Lane. The administrative law judge found that none of the allegations had been proved and dismissed the complaint.
The Board affirmed all the rulings of the administrative law judge except with respect to the discharge of Lane.
Lane, although aggrieved by his discharge, never claimed he was engaged in protected concerted activity while he was dating. On the contrary, he testified he kept his friendship with the customer separate from his work and had no recollection of discussing conditions of employment with her. Lane attributed his discharge to other unfair labor practices, which were not sustained by the evidence.
The general counsel has not shown that his position in his petition for enforcement in this court was substantially justified. Our conclusion is not based simply on the general counsel's lack of success before the administrative law judge and in this court. Those circumstances, standing alone, would be insufficient to warrant an award.
The difficulty with the general counsel's position is its lack of a reasonable factual basis. In his initial brief on the merits in which he sought enforcement of the Board's order and in his brief in opposition to Tyler's fee application, the general counsel did not advert to Lane's testimony that he had no recollection of making the statements on which the Board based its decision and Lane's disclaimer that he was engaged in protected concerted activity. The general counsel simply failed to address this hiatus in his proof, and he offered no rational explanation for it. Finally, the general counsel has suggested no special circumstances that make an award unjust.
Tyler has claimed attorney's fees incurred in proceedings before the Board. Although § 2412(d)(3)
Section 208 of the Act provides that its provisions apply to any adversary adjudication or civil action pending on or commenced after October 1, 1981.
Tyler also has sought recovery of fees related to the proceedings in this court incurred prior to October 1, 1981. Tyler petitioned for review in this court on August 18, 1981, and the general counsel subsequently cross-petitioned for enforcement. The petitions were pending when the Act became effective. Although the general counsel asserts such fees are not recoverable, we find his argument unpersuasive.
The Act's test for recovery of attorney's fees is whether the case was pending on or after October 1, 1981, and not when the fees were incurred. The Supreme Court previously has approved fee awards for work performed before the effective date of the applicable authorizing statute. See Hutto v. Finney, 437 U.S. 678, 694 n. 23, 98 S.Ct. 2565, 2575 n. 23, 57 L.Ed.2d 522 (1978) (Civil Rights Attorney's Fees Awards Act); Bradley v. School Board of the City of Richmond, 416 U.S. 696, 711-21, 94 S.Ct. 2006, 2016-21, 40 L.Ed.2d 476 (1974) (Educational Acts Amendments of 1972). Because the statutes involved in those cases and the Equal Access to Justice Act address similar concerns, the rationale of Bradley and Hutto applies here. See Underwood v. Pierce, 547 F.Supp. 256, 260-61 (C.D.Cal.1982); Photo Data, Inc. v. Sawyer, 533 F.Supp. 348, 351-52 (D.D.C.1982).
Counsel are requested to confer in an effort to settle the allowance of fees.
The Board has adopted regulations to implement its administration of the Act. See 29 C.F.R. §§ 102.143-.155 (1982).