Operations In Fiscal Year 1988 - National Labor Relations Board

XSpecial and Miscellaneous LitigationA. Litigation Under the Equal Access to Justice ActIn All Shores Radio Co. v. NLRB,' the Second Circuit deniedAll Shore's petition for review of a Board Order dismissing, forlack of jurisdiction, an application for fees under the EqualAccess to Justice Act (5 U.S.C. § 504) (EAJA). The court foundthe undisputed facts showed that the company filed its application1 week after the 30-day period required by statute pursuantto an extension granted by the Board's Executive Secretary. TheBoard dismissed the application, concluding that the EAJA's 30-day filing requirement "is jurisdictional and cannot be waived orextended." The court agreed with the Board and followed theFifth, Seventh, Eighth, and Ninth Circuits in holding that theEAJA deadline is jurisdictional and cannot be waived by theBoard or the courts. Further, the court held that the Boardshould not be estopped from enforcing the deadline because: (1)the deadline is a limitation of the Board's subject matter jurisdictionto which the principles of estoppel do not apply and (2)there is no factual basis for estoppel here because the ExecutiveSecretary's grant of an extension of time in the context of anewly enacted statute did not rise to the level of affirmative misconduct.Finally, the court rejected the company's contentionthat the Thompson rule2 of "unique circumstances" required theBoard to entertain the untimely fee application.The District of Columbia Circuit in Leeward Auto Wreckers v.NLRB, 3 held that, although the Board's General Counsel wassubstantially justified in filing a complaint against Leeward andproceeding to hearing, she lost "the protective mantle of 'substantialjustification' . . . at the conclusion of the hearing." Thecourt therefore remanded the case to the Board for calculation offees for that period beginning after the conclusion of the administrativelaw judge's hearing. In so doing, the court agreed withthe judge's analysis of the case, which had been reversed by theBoard, that, once Leeward had established its Westinghouse de-841 F.2d 474.▪ Thompson v. INS, 375 U.S. 384 (1964).▪ 841 F.2d 1143.165