Appeal and cross-appeal from order of Judge Roger J. Miner, Northern District of New York, dated July 30, 1985, granting attorney's fees to a union member-intervenor in a successful LMRDA Title IV challenge to union election procedures. Affirmed in part and modified in part. Judge Winter dissents in a separate opinion.
Before: LUMBARD, CARDAMONE and WINTER, Circuit Judges.
This appeal presents the question of whether a plaintiff-intervenor who aids the Secretary of Labor in mounting a successful challenge to union election procedures under Title IV of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. §§ 481-483 (1982), may recover attorney's fees from the defendant union.*fn1 We hold that attorney's fees may be granted to Title IV intervenors and affirm the district court's award in the present case; however, we believe that the district court should also have allowed fees for the time spent by intervenor's counsel on the fee application itself.
Because the events leading up to this petition for attorney's fees have been detailed in Donovan v. CSEA Local Union 1000, 594 F. Supp. 188 (S.D.N.Y. 1984), aff'd in part and rev'd in part, 761 F.2d 870 (2d Cir. 1985), we only briefly recapitulate. Intervenor Helen Carter is a member of the defendant union, the Civil Service Employees Association ("CSEA"), which represents approximately 200,000 employees of the State of New York and its various political subdivisions. Carter wanted to run in the union's 1983 election for the state-wide office of Secretary. She failed to obtain the endorsement of a select "nominating committee" although the incumbent was automatically placed on the ballot in accordance with the union's constitution. Carter was also unable to get on the ballot through the alternative procedure of obtaining signatures from 2% of the union's membership -- approximately 3,800 names based on 1982 membership -- within 6 weeks of being rejected by the committee.
After protesting within the union the decision not to place her name on the ballot, Carter retained Daniel E. Clifton and filed suit against CSEA in the Eastern District of New York. She sought a preliminary injunction prohibiting the union from conducting the election. CSEA contested the court's jurisdiction, arguing that it was a public employee labor union and, therefore, not covered by the LMRDA or the Labor Management Relations Act. Carter's counsel was able to demonstrate, however, that CSEA represented a number of private-sector employees in industries affecting interstate commerce and that the federal labor laws were applicable. On May 13, 1982, Judge Sifton denied Carter's request for a preliminary injunction on the ground that Carter had failed to show a likelihood of success on the merits. This litigation was later dismissed as moot.
CSEA conducted a mail ballot election from May 15 to June 15, 1982. After the results were announced, Carter protested through union channels the nominating procedures and the lack of a secret ballot, but union officials refused to consider her protests, stating that they were untimely filed.
In August, 1982, Carter submitted an election complaint to the Secretary of Labor, pursuant to § 402(a)(1) of the LMRDA, 29 U.S.C. § 482(a)(1) (1982). Her counsel provide documentation to satisfy the Secretary that the CSEA was subject to the LMRDA. Counsel also provided the Secretary with material to show that Carter had exhausted her internal union remedies -- a statutory prerequisite to the Secretary's exercising jurisdiction to investigate a union member's complaint. See id.
The Secretary then filed suit against CSEA in the Northern District on January 31, 1983. Carter subsequently intervened as a plaintiff. The Secretary sought a declaration that CSEA had violated § 401(b) of the LMRDA, 29 U.S.C. § 481(b) (1982), by failing to use secret ballots to conduct the election for statewide offices. The Secretary also alleged that CSEA's nominating procedures violated § 401(e) of the LMRDA, 129 U.S.C. § 481(e) (1982) by instituting an arbitrary committee selection process and unreasonable signature requirements for the nomination of certain candidates.
The Secretary moved for partial summary judgment on the secret ballot issue. CSEA cross-moved for summary judgment on the ground that Carter had not exhausted her internal union remedies. At the request of William M. Gonzalez, the attorney for the Department of Labor, Carter's counsel prepared papers in opposition to CSEA's cross-motion. On June 29, 1984, the court granted the Secretary's motion and denied the union's cross-motion. See 594 F. Supp. at 194-197.
Soon thereafter, the Secretary moved for partial summary judgment on the issue of CSEA's nominating procedures. The district court denied this motion stating that the use of the nominating committee standing alone violated the LMRDA, but that the signature procedure afforded candidates a reasonable opportunity to appear on the ballot. IT concluded, however, in light of its decision on the secret ballot issue, that a rerun of the 1982 election would be required. See 594 F. Supp. at 188-194. A new election was held under the Secretary's supervision on October 15, 1984.*fn2 Carter appeared on the ballot but lost.
The Secretary appealed the denial of summary judgment on the issue of CSEA's nominating procedure. CSEA cross-appealed the district court's finding that Carter had exhausted her administrative remedies. Carter again intervened, filed a brief, and argued against the union's cross-appeal. On May 1, 1985, we affirmed the district court on the issue of exhaustion of remedies but reversed no the issue of nominating procedures. See 761 F.2d 870 (2d Cir. 1985). We held that the signature method for getting on the ballot did not save CSEA's nominating procedures from attack because the signature requirement was not uniformly applied to all candidates, but rather imposed a significant burden on those not selected by the committee method.
After our decision, Carter petitioned the district court for costs and attorney's fees. Carter sought compensation her counsel's work in this lawsuit and in establishing that CSEA was governed by the LMRDA in the Eastern District litigation. Carter sought fees for 369 1/4 hours of attorney time at the rate of $100 per hour, plus costs of $861.20, for a total of $38,785.86. CSEA opposed the grant of fees arguing that there is no basis for such an award under Title IV and, in the alternative, that the amount sought was excessive.
The district court requested a statement form the Secretary on whether attorney's fees may be awarded to intervenors under Title IV and, if so, the appropriate amount to award to Carter. The Secretary declined to take a position on these issues and instead simply catalogued the assistance Carter's counsel had rendered. The Secretary explained that Carter's counsel had: (1) helped in ascertaining that CSEA was subject to federal jurisdiction under the LMRDA; (2) provided material showing that Carter had exhausted her internal union remedies; and (3) aided during the appeal of the nominating procedures issued by serving as a "ready ...