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NATIONAL ASS'N OF MFRS. v. UNITED STATES DOL

April 24, 1997

NATIONAL ASSOCIATION OF MANUFACTURERS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF LABOR, Defendant.



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.

 DISCUSSION

 I. PRIOR CASE HISTORY

 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.

 II. ELIGIBILITY UNDER THE EAJA

 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 ...


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