SECRETARY OF LABOR,
Complainant,

v.

FEDERAL CLEARING DIE CASTING
COMPANY,
Respondent.

OSHRC Docket No. 80-2903

DECISION

Before:  ROWLAND, Chairman, CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:
This case is before us on review of Administrative Law Judge Ralph B. Maxwell's decision dismissing Federal Clearing Die Casting Company's application for attorneys' fees under the Equal Access to Justice Act, Pub. L. No. 96-481, 94 Stat. 2325 (1980).  We have jurisdiction pursuant to 29 U.S.C. § 661(i) and 5 U.S.C. § 504.  See 46 Fed. Reg. 48,078, 48,083 (1981)(to be codified at 29 C.F.R.§ 2204.309).  We affirm the judge's dismissal of the application but for a different reason than that given by the judge.

I

Respondent, Federal Clearing Die Casting Company ("Federal"), contested citations issued to it by the Secretary alleging violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("OSH Act").  Judge Maxwell suppressed the Secretary's evidence and dismissed the citations on the basis that the warrant authorizing the Secretary's inspection of Federal's plant during which the evidence was obtained was invalid.  The judge relied on the decision of the Seventh Circuit in a collateral proceeding involving the validity of this warrant. [[1/]]   The Secretary sought Commission review of the judge's decision, but review was not directed and the judge's decision became a final order of the Commission by operation of law.  See 29 U.S.C. § 661(i). The Secretary filed a petition for review of the Commission final order in the United States Court of Appeals for the Seventh Circuit, pursuant to section 11 of the OSH Act. [[2/]]

Federal then filed with the Commission an application under the Equal Access to Justice Act ("EAJA") for an award of attorneys' fees incurred in contesting the citations.  Judge Maxwell dismissed the application on the basis that the Seventh Circuit's ruling denying an application for fees filed with it was "the law of the case."  Federal petitioned for Commission review of the judge's dismissal of its fee application and Chairman Rowland directed review.  The judge's dismissal of Federal's fee application under EAJA is now before us.

II

Finding that "certain individuals, partnerships, corporations, and labor and other organizations may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights . . .," Congress sought to diminish that deterrent effect by authorizing, through EAJA, the award of attorney fees, expert witness fees, and other costs to certain parties that prevail against the United States in court actions or administrative proceedings. Pub. L. No. 96-481, § 202, 94 Stat. 2325 (1980).  Thus, EAJA requires an agency that conducts adversary adjudications, such as the Commission, to award to a prevailing party, other than the United States, fees and other expenses incurred by the party in connection with the proceeding, unless the position of the government as a party was substantially justified or special circumstances make an award unjust.  5 U.S.C. § 504(a)(l).  EAJA applies to any adversary adjudication pending on, or commenced after, October 1, 1981. Pub. L. No. 96-481, § 208, 94 Stat. 2325, 2330.  To be eligible for an award of fees and expenses under EAJA, a party that is a business, an association, or a private or public organization must employ no more than 500 employees and, except for certain tax exempt organizations and agricultural cooperatives, must have a net worth of no more than $5 million at the time the adversary adjudication was initiated.  5 U.S.C. § 504 (b)(1)(B).

The Commission's interim rules implementing EAJA specify that the party seeking an award has the burden of showing that it is eligible for the award, while the Secretary has the burden of showing that an award should not be made.  46 Fed. Reg. 48,078, 48,081 (1981) (to be codified at 29 C.F.R. §§ 2204.105 - 2204.106).  The rules also provide that the term "adversary adjudication" as used in EAJA includes employers' contests of citations or penalties before the Commission.  46 Fed. Reg. 48,078, 48,081, (1981) (to be codified at 29 C.F.R. § 2204.104).

When a court reviews an agency decision resulting from an adversary adjudication, EAJA authorizes the court to award to a non-federal prevailing party fees and other expenses incurred in connection with the agency proceeding, as well as fees and expenses incurred in the court review.  28 U.S.C. §§ 2412(d)(1) & 2412(d)(3).   Additionally, EAJA provides that when a court reviews the decision resulting from the adversary adjudication, an award for fees and other expenses may be made only by the court.  5 U.S.C. § 504(c)(1).  To effectuate this provision of the statute, the Commission's rules provide that "[i]f review of a Commission decision . . . is sought in the court of appeals under section 11 of the OSH Act, 29 U.S.C. 660, an application for an award filed with the Commission with regard to that decision shall be dismissed . . . ."46 Fed. Reg. 48,078, 48,082 (1981) (to be codified at 29 C.F.R. § 2204.302(c))

In this case, Federal filed with the Commission an application for attorneys' fees under EAJA after the Secretary had sought appellate review of the decision with regard to which the attorneys' fees were requested.[[3/]] Therefore, the judge lacked authority to grant Federal's application, and the application should have been dismissed under the above-quoted Commission rule.

Thus, it is not necessary for us to reach the issue, posed in Federal's petition for review, of whether the Commission is bound in ruling on the fee application in this case by the Seventh Circuit's decision denying attorneys' fees to Federal in a related case.
Accordingly, Judge Maxwell's order dismissing Federal's application for attorneys' fees is affirmed.
SO ORDERED.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  JAN 31 1983

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1/]] When a compliance officer attempted to inspect Federal's plant pursuant to an ex parte warrant on January 11, 1980, Federal refused entry and was held in civil contempt by a federal district court.  In re Establishment Inspection of Federal Clearing Die Casting Co., 8 BNA OSHC 1635, 1980 CCH OSHD ¶ 24,437 (N.D. Ill. 1980).  The Seventh Circuit then denied Federal's motion for a stay pending appeal.   After a further hearing in the district court, Federal agreed to permit the inspection, which resulted in the citations contested before Judge Maxwell.

Subsequently, the Seventh Circuit reversed the district court's decision and dissolved the warrant, finding that it had not been issued on probable cause.   Donovan v. Federal Clearing Die Casting Co., 655 F.2d 793 (7th Cir. 1981).   After prevailing in the court of appeals, Federal filed an application there for an award of attorneys' fees under EAJA.  Although the court had found the warrant invalid, it declined to award fees to Federal.  Because the district court had enforced the warrant and a stay pending appeal had been denied, the appellate court concluded that the government's position could not be considered to have been "without substantial justification."

[[2/]] A divided Seventh Circuit panel subsequently reversed the judge's decision suppressing the evidence and remanded the case for hearing on the merits.  Donovan v. Federal Clearing Die Casting Co., 11 BNA OSHC 1014, 1982 CCH OSHD ¶ 26,340 (7th Cir. Dec. 9, 1982).

[[3/]] As noted above, see note 2, that decision was subsequently reversed by the Seventh Circuit.