United States District Court, S.D. Ohio, Western Division, Dayton
GAREY E. LINDSAY, Regional Director of the Ninth Region of the National Labor Relations Board, for and on Behalf of the National Labor Relations Board, Petitioner,
MIKE-SELL'S POTATO CHIP COMPANY, Respondent.
ENTRY AND ORDER DENYING MOTION FOR ATTORNEYS'
FEES, COSTS AND OTHER EXPENSES (DOC. 20) BY
DEFENDANT-RESPONDENT MIKE-SELL'S POTATO CHIP
M. ROSE UNITED STATES DISTRICT JUDGE.
case is before the Court on the Motion for Attorneys'
Fees, Costs, and Other Expenses (Doc. 20) filed by
Defendant-Respondent Mike-Sell's Potato Chip Co.
(“Mike-Sell's”). Mike-Sell's contends
that Plaintiff-Petitioner National Labor Relations Board
(“NLRB”) and Garey Lindsay, Eric Taylor, Linda
Finch, and Naomi Clark, acting in their official capacities
on behalf of Region 9 of the NLRB (collectively with the
NLRB, hereinafter referred to as “Petitioner”)
filed an unjustified Petition for 10(j) Injunction (the
“Petition”) (Doc. 1) against Mike-Sell's for
alleged violations of the National Labor Relations Act
(“NLRA”), 29 U.S.C. §§ 151-169.
Mike-Sell's argues it is therefore entitled to
reimbursement of its attorneys' fees, costs, and other
expenses incurred in defending against the Petition pursuant
to 28 U.S.C. §§ 1920, 1927, 2412 and the
Court's inherent authority.
Petition alleged that Mike-sell's refused to bargain with
the International Brotherhood of Teamsters, General Truck
Drivers, Warehousemen, Helpers, Sales and Service, and Casino
Employees, Teamsters Local Union No. 957 (the
“Union”), despite an obligation to do so, before
selling four distribution routes for its products. Petitioner
sought a preliminary injunction that would require
Mike-Sell's to rescind the sale of the four routes,
provide certain information to the Union, and bargain with
the Union pending the NLRB's determination of whether
Mike-Sell's violated the Act. After a hearing and full
briefing by the parties, the Court found that, although
Petitioner established reasonable cause to believe that
Mike-Sell's violated the NLRA, entry of the injunction
would not be just and proper. (Doc. 18.)
has filed an Opposition (Doc. 26) to Mike-Sell's Motion
for Attorneys' Fees, in response to which Mike-Sell's
filed a Reply (Doc. 27). This matter is therefore fully
briefed and ripe for review. As discussed below, upon
consideration of the facts of this case along with the
applicable legal standard, Petitioner was substantially
justified in bringing the Petition. Accordingly, the Court
DENIES the Motion for Attorney Fees (Doc.
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412, provides that a court “shall award to a
prevailing party” its fees, costs and other expenses in
a civil action brought by an agency of the United States,
“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). The EAJA is designed “to eliminate
financial disincentives for those who would defend against
unjustified governmental action and thereby to deter the
unreasonable exercise of Government authority.”
Ardestani v. I.N.S., 502 U.S. 129, 138 (1991)
seeking an award of fees and expenses must file an
application showing that it is a prevailing party eligible to
receive an award under the EAJA and the amount sought,
including an itemized statement showing the time expended and
the rate at which fees and expenses were computed. 28 U.S.C.
§ 2412(d)(1)(B). The government then has the burden of
showing that its position was substantially justified or that
special circumstances make an award unjust. Caremore,
Inc. v. N.L.R.B., 150 F.3d 628, 629 (6th Cir. 1998);
see also Pickering v. Mukasey, 306 F. App'x 246,
248 (6th Cir. 2009). The government's position is
substantially justified if it is “‘justified in
substance or in the main'-that is, justified to a degree
that could satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988). “[A] position
can be justified even though it is not correct, and [. . .]
can be substantially (i.e., for the most part) justified if a
reasonable person could think it correct, that is, if it has
a reasonable basis in law and fact.” Id. at
566 n. 2. “A request for attorney's fees should not
result in a second major litigation.” McQueary v.
Conway, 614 F.3d 591, 602 (6th Cir.2010) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).
28 U.S.C. § 1927, the Court may hold an attorney
accountable for excessive fees and expenses that a party
incurs due to the attorney's improper conduct.
Specifically, Section 1927 provides that:
Any attorney or other person admitted to conduct cases in any
court of the United States or any Territory thereof who so
multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys'
fees reasonably incurred because of such conduct.
28 U.S.C. § 1927. A district court also has inherent
authority to sanction bad-faith conduct, including by
entering an award of attorneys' fees and expenses against
the offending party. First Bank of Marietta v. Hartford
Underwriters Ins. Co., 307 F.3d 501, 516 (6th Cir.
does not dispute that Mike-Sell's is a prevailing party
and eligible for a fee award under the EAJA. Instead,
Petitioner argues that Mike-Sell's application for a fee
award should be denied because Petitioner's position was
substantially justified. (Doc. 26 at PAGEID # 773.) As
discussed below, even though the Court denied the Petition,
it had a reasonable basis in law and fact and therefore does
not support an award of fees under the EAJA.
brought this action under Section 10(j) of the NLRA, which
permits the NLRB, upon issuance of an administrative
complaint alleging an unfair labor practice, to petition a
district court for “such temporary relief or
restraining order as it deems just and proper.” 29
U.S.C. § 160(j). To be granted a preliminary injunction,
the NLRB must carry two burdens. First, it must establish
that “reasonable cause” exists to believe unfair
labor practices occurred. NLRB v. Voith Indus. Servs.,
Inc., 551 F. App'x 825, 827 (6th Cir. 2014). Second,
it must show that entry of the injunction would be
“just and proper.” Id.
denying the Petition, the Court found that Petitioner met its
initial burden of establishing reasonable cause, but not that
entry of the injunction would be “just and
proper.” (Id. at 14-19.) Thus, there is no
question that Petitioner was substantially justified in its
position at least under the first prong of the standard. The
only issue is the reasonableness of Petitioner's position
that the injunction was just and proper. The mere fact that
the Petition was denied does not “raise a presumption