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April 24, 1997


The opinion of the court was delivered by: LAMBERTH


 This case comes before the court pursuant to plaintiff National Association of Manufacturers' ("NAM") application for reasonable attorney's fees, expenses and costs incurred in their prosecution of this action. The Association files for this award pursuant to 28 U.S.C. § 2412(a) and (d), the Equal Access to Justice Act ("EAJA"). For the reasons contained herein, this court grants the plaintiff's application for an award under the EAJA. The defendant United States Department of Labor ("DOL") will be ordered to compensate NAM in the amount of $ 41,145.59.



 The NAM's initial complaint was filed with this court on April 14, 1995. The complaint challenged fifteen separate components of the DOL's rules governing the H-1B visa program, a program that allows United States companies to employ aliens with "specialty occupation" skills that could benefit the employer. In time, both sides moved for summary judgment.

 On July 22, 1996, this court partially granted and denied both motions for summary judgment. The NAM successfully established that six significant components of the H-1B program promulgated by the DOL did not comply with the notice and comment requirements of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553 (b)(3) (1994). Accordingly, this court granted partial summary judgment to the NAM, electing to set aside the six violative components. In addition, this court rejected the NAM's challenge to six of the H-1B components, and found that the challenge to three of the components was not yet ripe for review. This court therefore granted partial summary judgment to the DOL on these nine issues.

 A. The NAM's Application

 The NAM now submits an application pursuant to the EAJA seeking an award for the reasonable attorney's fees, expenses, and costs incurred in the prosecution of this action. The EAJA states as follows:


Except as otherwise specifically provided by statute, a court shall award to a prevailing party . . . fees and other expenses, in addition to any costs . . . 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. § 2412 (d)(1)(A) (1994).

 By not challenging the NAM in their opposition brief, the DOL effectively concedes that the NAM is in fact a prevailing party for the purposes of the statute. *fn1" In addition, the DOL did not assert the existence of any special circumstances that would make a fee award unjust or inequitable. The DOL does, however, challenge the NAM's ability to satisfy other requirements of the statute.


 First, the DOL claims that the NAM is not a party eligible to receive attorney's fees and expenses under the EAJA. *fn2" According to the statute, any association whose net worth exceeds $ 7,000,000 or whose size exceeds 500 employees at the time the civil action was filed is ineligible to receive an award as a prevailing party. 28 U.S.C. § 2412 (d)(2)(B)(ii) (1994).

 The NAM itself clearly satisfies these two criteria: it has a net worth below the $ 7,000,000 ceiling and employs less than 500 employees. Decl. of Linda Chandler at 1-2. The DOL contends, however, that since the lawsuit was brought on behalf of the NAM's numerous members, the court should utilize the aggregate of the members' net worth and employee numbers in determining the NAM's eligibility under the EAJA. The NAM members include giant international corporations whose net worth and employee payroll greatly exceed the EAJA cap. *fn3" In addition, corporations such as these serve to benefit from the NAM's successful challenge to the violative H-1B components. In light of this, the DOL posits that the aggregate, and not merely the NAM's individual figures, should be used to determine its EAJA eligibility.

 In making this claim, the DOL relies primarily on two cases: Unification Church v. INS, 246 U.S. App. D.C. 98, 762 F.2d 1077 (D.C. Cir. 1985) and National Truck Equip. v. National Highway Safety Admin., 972 F.2d 669 (6th Cir. 1992). In addition, to bolster their aggregate theory, the DOL points to the EAJA's legislative history and Congress' treatment of agricultural cooperative associations under the EAJA. This court finds none of these DOL arguments persuasive.

 In Unification Church, three plaintiffs sought attorney's fees pursuant to the EAJA for their successful prosecution of an action. Unification Church, 762 F.2d at 1079. These three plaintiffs, individually, all satisfied the net worth and size caps imposed by the EAJA. The Church itself was also a fourth plaintiff in the matter. According to an agreement that existed amongst the plaintiffs, the Church was to pay for all attorney's fees incurred by the four parties. Id. at 1082. Under this arrangement, therefore, the Church, and not the three individual plaintiffs, would be the beneficiary of any EAJA fee award.

 Congress intended to limit the award of fees to "small entities that find particularly burdensome the ever-rising costs of litigation." Id. The court thus decided to look to only the parties that would be personally liable for the payment of the fees in deciding if the EAJA qualifications were met. Id. That "real party in interest" was the Church, and since the Church did not satisfy the ceiling on profits and size imposed by the EAJA, the plaintiffs were not eligible for an award of fees. Id. 762 F.2d at 1083. To hold otherwise would allow the Church to thwart the underlying purpose behind the statutory caps.

 The facts of the case at bar are clearly distinguishable from the situation described in Unification Church. In Unification Church, the key language focuses on the "'fee arrangement among the plaintiffs.'" See American Ass'n of Retired Persons v. Equal Employment Opportunity Comm'n, 277 U.S. App. D.C. 189, 873 F.2d 402, 405 (D.C. Cir. 1989). Here, no such fee arrangement exists. *fn4" The decision to prosecute this case was made by the NAM alone, independent of the corporations involved in the association. While some of these corporations may benefit from the successful outcome of the NAM litigation, they played no part in the legal prosecution or decision-making processes of this case. The NAM, and not any of its members or affiliates, is the only party in interest. As such, the court must look to the NAM's net worth and employee size in order to determine its eligibility under the EAJA. Since the NAM clearly satisfies these statutory ceilings, it is eligible for an award of fees and costs under the EAJA.

 To refute this conclusion, the DOL relies upon the National Truck case from the Sixth Circuit. There, a trade association brought an action challenging the safety standards of a federal agency. National Truck, 972 F.2d at 670. Association members served to benefit from the association's successful prosecution of the case. Since the trade association contained "a number of companies who [could] readily afford the costs to protect their own interests," the court decided to aggregate the net worth and employees of the members in determining their eligibility for awards under the EAJA. Id. at 673-74. When aggregated, the numbers far surpassed the limits imposed by the statute. The plaintiff was therefore ineligible for an EAJA award.

 This court is not swayed by the National Truck holding. Instead, this court finds persuasive the contrary results reached in Texas Food Indus. Ass'n v. USDA, 81 F.3d 578, 582 (5th Cir. 1996) and Love v. Reilly, 924 F.2d 1492, 1494 (9th Cir. 1991). Both cases involved trade associations seeking awards under the EAJA. In both, the courts chose not to aggregate the net worth and employee numbers to include the corporate members of the associations. If the associations themselves qualified under the statutory ceiling, that was sufficient to bring an action for fees under the EAJA. Texas Food, 81 F.3d at 582; Love, 924 F.2d at 1494.

 This court agrees with the analyses of these two circuits. The statute is clear in its description of who qualifies as a "party" capable of bringing an EAJA fee claim: "any . . . association . . . the net worth of which did not exceed 7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed." 28 U.S.C. § 2412 (d)(2)(B) (1994) (emphasis added). The language is unambiguous. The statute imposes a fixed ceiling upon the net worth and employee size of associations. Nowhere does Congress instruct the courts to aggregate the net worth and employment totals of associations who function on behalf of larger corporations. *fn5" Congress certainly had the opportunity to include such a requirement, but chose not to.

 When interpreting clear and unambiguous statutes, courts are strongly encouraged to "presume that a legislature says in a statute what it means and means in a statute what it says." Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 117 L. Ed. 2d 391, 112 S. Ct. 1146 (1992). This is a "cardinal canon of statutory construction." Texas Food, 81 F.3d at 582. Section 2412 (d)(2)(B) explicitly states that individual associations are required to satisfy a certain limit on net worth and size. No aggregation requirement is included. Absent ambiguity, this court gives these words their plain and obvious meaning, and therefore finds the NAM has satisfied the limits imposed on them by Congress.

 The DOL argues that such an interpretation runs contrary to Congress' intent to limit EAJA award fees to small businesses who could perhaps be fearful of entering into expensive litigation. Allowing trade associations whose members include international corporations to collect under the statute, they posit, frustrates the true objective of the statute: to protect those in financial need of protection. Yet this court stresses again the plain language of the statute. Section 2412 (d)(2)(B) clearly expresses Congress' desire to make associations eligible based upon their own independent qualifications. Texas Food, 81 F.3d at 582. Nowhere is it written that the qualifications of the association's constituent members are to aggregated. Id. Congress was certainly aware that national associations composed of a number of larger corporations could bring claims seeking awards pursuant to the EAJA. They chose not to provide a provision for aggregation, but instead instructed courts to look only to the association itself. This court therefore elects to give Congress' words their plain meaning, and chooses not to implicitly read in that which is not present. *fn6"

  Section 2412 (d)(2) of the EAJA goes on to exempt agricultural cooperatives and other non-profit organizations from the net worth ceiling imposed on other businesses or companies. 28 U.S.C. § 2412 (d)(2)(B) (1994). The DOL argues that this provision's underlying purpose was to protect these cooperatives from the implicit EAJA aggregation requirement that Congress intended to exist. Congress would have no need to exempt these cooperatives from the aggregation of its members in determining net worth, the DOL asserts, had they not desired the EAJA to look beyond the single association to its members net worth. *fn7"

 What the DOL fails to recognize is that "neither the statute nor its legislative history suggest[s] that the special eligibility rule for agricultural cooperatives and non-profits was motivated by concerns about ineligibility resulting from the aggregation of employees and assets." Texas Food, 81 F.3d at 581. The plain language of the EAJA does not mention aggregation. Its purpose, as explicitly mentioned, is to "make associations eligible for an award on the basis of each association's independent qualifications." Id. at 582. In addition, the EAJA does not exempt these same cooperatives from the 500 employee limit specified in the statute. Had Congress truly intended its net worth exemption of the agricultural cooperatives to be an implicit requirement of aggregation, they undoubtedly would have exempted them from the size ceiling as well. *fn8"

 The DOL also cites a conference report to an EAJA amendment that describes a net worth and employee exemption for local labor unions. They posit that there would be no need to include such an exemption had the legislators not intended that the fee applicant should be analyzed in the aggregate. Yet the mere fact that such an exemption exists does not necessarily show such a Congressional intention. *fn9" Regardless, when stacked up against the clear and unambiguous language of the statute, this court finds the explicit wording of the statute is controlling. As such, this court looks only to the eligibility requirements of the NAM, not its members or affiliates. Since the NAM meets both the net worth and size limits, it is an eligible party under the EAJA.


 According to the statute, no award can be given if "the court finds that the position of the United States was substantially justified. . ." *fn10" 28 U.S.C. § 2412 (d)(1)(19). The burden to prove substantial justification is on the government. See Hanover Potato Products, Inc. v. Shalala, 989 F.2d 123, 128 (3d Cir. 1993); Cinciarelli v. Reagan, 234 U.S. App. D.C. 315, 729 F.2d 801, 806 (D.C. Cir. 1984). Courts have interpreted this to require that the government prove both that its underlying action and its litigation positions were substantially justified. See Lundin v. Mecham, 299 U.S. App. D.C. 7, 980 F.2d 1450, 1459-61 (D.C. Cir. 1992). Substantial justification is present if "there is a good reason for the action, and a good reason for fighting about it." National Law Center on Homelessness and Poverty v. United States Dep't of Veterans Affairs, 799 F. Supp. 148, 156 (D.D.C. 1992). Since this court finds that the DOL was not substantially justified in its underlying action, the question of their litigation position need not be reached.

 The DOL clearly promulgated provisions pertaining to the H-1B program without allowing those affected notice or an opportunity to respond. Examples of such actions, clearly prohibited by the Administrative Procedure Act, 5 U.S.C. § 553 (b)(3), were common. See, e.g., Mem. Op. at 30-31 (chastising the DOL for its promulgation of H-1B provisions involving payment for nonproductive time and alterations in status of part-time H-1B workers without providing notice or an opportunity to respond); Mem. Op. at 40 (discussing an H-1B provision related to travel reimbursement and stating " once again, defendant has selected and imposed a standard without providing an opportunity for those subject to the impending standard to comment"); Mem. Op. at 31 (addressing the DOL's failure to post notice at temporary worksites). A government agency that overtly disregards the notice requirements of the APA cannot credibly argue that their underlying actions were substantially justified. See United Church Bd. for World Ministries v. SEC, 649 F. Supp. 492, 498 (D.D.C. 1986). The DOL has done this, and therefore cannot plausibly claim substantial justification in its actions.

 The DOL position is further weakened by the fact that, prior to the initiation of the lawsuit, the NAM and several other parties notified the DOL via letter that portions of the H-1B regulations did not comply with the notice and comment requirements mandated by law. The DOL chose not to respond. The DOL also was asked by assorted employers and trade associations to suspend a portion of their H-1B regulations so as to allow parties an occasion to respond. The DOL did not yield to these requests. Thus, prior to the litigation, the DOL was on notice that various groups and organizations found their regulations to be in violation of the APA. They preferred not to address these concerns, concerns that later proved to be legally correct. The DOL's failure to confront these legitimate considerations made prior to the initiation of the suit is further evidence of a lack of substantial justification for their underlying acts. See Lundin, 980 F.2d at 1460-61.

 The NAM is a qualified prevailing party under the clear language of the EAJA. There exists no substantial justification for the underlying actions of the DOL. *fn11" As such, the NAM is entitled to an award of fees pursuant to the EAJA. This court now turns its attention to the amount of fees the NAM is authorized to receive.


 All told, the NAM seeks compensation for 278.8 hours expended by attorneys in this action, and 8.4 hours of work performed by paralegals. *fn12" The breakdown of the attorneys' hours is as follows: Hamilton Loeb (D.C. office): 22.65 hrs. Crystal Williams (Atlanta office): 13.5 hrs. Behnam Dayanim (D.C. office): 242.65 hrs. Michael Butler (paralegal): 7.4 hrs. Todd R. Troutner (paralegal): 1.0 hr.


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