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SPENCER v. NLRB

July 1, 1982

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


Johnson, District Judge.


The opinion of the court was delivered by: JOHNSON

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, *fn1" 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). *fn2" 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. *fn3" 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 1059, 108 LRRM 1145 (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,, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969); Sibron v. New York, 392 U.S. 40, 57, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (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; 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, 474 F.2d 426 (1972) These events may transpire 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, (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, 79 LRRM 3028 (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, 19 FEP Cases 282, 59 L. Ed. 2d 642, 99 S. Ct. 1379 (1979).

 Each of the aforementioned conditions for invoking the mootness doctrine have 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, 43 LRRM 2222, 3 L. Ed. 2d 210, 79 S. Ct. 180 (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:

 It is manifestly clear under analogous cost-shifting 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, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980); *fn4" see also Foster v. Boorstin, 182 U.S. App. D.C. 342, 561 F.2d 340, 18 FEP Cases 406 (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 ...


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