SECRETARY OF LABOR,
Complainant,

v.

WILLIAM B. HOPKE COMPANY, INC.,
Respondent.

OSHRC Docket No. 81-0206

DECISION

Before:  BUCKLEY, Chairman, and WALL, Commissioner.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

Both the Secretary and the William B. Hopke Company claim that Assistant Chief Administrative Law Judge Irving Sommer erred in his disposition of Hopke's application for attorney's fees under the Equal Access to Justice Act, 5 U.S.C. 504 ("the EAJA"). We affirm the judge's decision.

Citation 1:  29 C.F.R. 1926.201(a)(2), Signals by Flagman

The Secretary issued several citations to William B. Hopke Company, Inc. Citation 1 complained of the traffic signaling directions given by Hopke's flagman.  The cited OSHA standard, 29 C.F.R. 1926.201(a)(2), states:

1926.201 Signaling.

(a) Flagmen

* * *

(2) Signaling directions by flagmen shall conform to American National Standards Institute D 6.1-1971, Manual on Uniform Traffic Control Devices for Streets and Highways.

Paragraph 6E-4 of the ANSI standard states in part:

6E-4 Flagging Procedures

The following methods of signaling with a flag should be used:

1.  To Stop Traffic.  The flagman shall face traffic and . . . .

2.  When it is Safe for Traffic to Proceed.  The flagman shall stand . . . .

3.  Where it is Desired to Alert or Slow Traffic.  By means of flagging, the flagman shall face traffic and . . .

(Emphasis added.)

Judge Sommer vacated the citation.  He noted that section 6E-4 of the ANSI standard states that the methods it described for signaling "should" be used.  The judge also observed that under ANSI section 1A-4, which defines "should," "shall," and "may" for purposes of the Manual on Uniform Traffic Control Devices, a standard using "should" is advisory, not mandatory.

Neither party sought review of the judge's decision.  After it became a final order of the Commission, Hopke filed an application for fees and expenses incurred in defending against the flagman citation.   Judge Sommer held that Hopke was entitled to an award but awarded less than Hopke sought.  Both parties petitioned for review of the judge's EAJA decision, and both petitions were granted.

A.  Substantial Justification

Under the EAJA, an employer who prevails in a contest of an OSHA citation and who meets certain limits on net worth and number of employees is entitled to an award of attorney fees and other expenses, unless the Secretary shows that his position was substantially justified or that special circumstances make an award unjust.[[1]]  There is no question that Hopke was the prevailing party as to citation 1.  The issue here is whether the Secretary established substantial justification.

The Secretary argues that, although the introductory sentence to the ANSI standard uses "should," the ANSI standard's various detailed requirements and the adopting OSHA standard are couched in the mandatory "shall."  Inasmuch as such a "mixed" standard had not been held unenforceable before Judge Sommer issued his decision, the Secretary reasons, his position was based on a novel but credible interpretation of the law and was substantially justified.

To establish "substantial justification" the Secretary must show that his position was reasonable in law and fact.[[2]]  The Secretary must be mindful, however, that the substantial justification standard was adopted as a "caution to agencies to carefully evaluate their case and not to pursue those which are weak or tenuous."[[3]]  The Secretary's case on citation 1 represented the very
type of weak and tenuous case that Congress sought to discourage by passing the EAJA.   As Judge Sommer noted, both the Commission and the courts had issued numerous decisions holding that an ANSI standard which uses "should" remains advisory even after being adopted as an OSHA standard.  E.g., Brown & Root, Power Plant Div., 80 OSAHRC 112/D2, 9 BNA OSHC 1027, 1980 CCH OSHD 24,958 (No. 76-2938, 1980), and the many cases cited therein.  These numerous cases, and the use of "should" in the critical introductory sentence of the ANSI standard, should have convinced the Secretary that, while his reliance on the mix of "should" and "shall" in the applicable standards may not have been frivolous, his position was too weak and tenuous to be substantially justified.

We do not, however, rest our decision entirely on that ground.  Although the Secretary contends that he "was entirely justified in urging that the Commission adopt . . . a novel but credible extension of the law," the record fails to indicate that that was the Secretary's justification for issuing or prosecuting the citation.  The Secretary's post-hearing brief failed to mention the issue even though the issue was apparent from the face of the ANSI standard and was raised by Hopke at the hearing.  Nowhere in the pre-EAJA record did the Secretary argue that the standard should not be construed as advisory.  The Secretary made such an argument only after Hopke filed its EAJA application.  Inasmuch as this argument was evidently not the Secretary's justification for issuing or prosecuting the citation, it cannot serve as a foundation for his substantial justification argument.   Del Mfg. Co. v. United States, 723 F.2d 980, 987 n.1 (D.C. Cir. 1983)(Wald, J., dissenting), cited with approval in H.R. Rep. 120 at 10 n.19, 1985 U.S. Code Cong. & Ad. News at 139.

The Amount of the Award

Judge Sommer awarded Hopke $3,131.45 for attorney's fees and expenses on the flagman citation, rather than the $6,733.44 Hopke had requested.  Considering the simplicity of the issues and the short time required for the trial of the flagman citation, the judge found that the amount requested by Hopke was unreasonable.  Hopke claims that the amount awarded by Judge Sommer is too low and that the judge had no discretion to limit an award to what he determines is "reasonable."  The Secretary, on the other hand, argues that the amount awarded is still too high.  We leave Judge Sommer's award undisturbed.

We turn first to Hokpe's objection to Judge Sommer's award of less than Hopke paid its attorneys to litigate the flagman citation. The Judge noted that under the EAJA, only "reasonable" attorneys' fees may be awarded.  See 5 U.S.C. 504(b)(1)(A)(defining "fees and other expenses" to include "reasonable attorney or agent fees"); 29 C.F.R. 2204.107(c)(stating criteria for determining reasonableness of fees).  Judge Sommer determined that some of the fees paid by Hopke to one of its attorneys were not reasonable because they were excessive in light of the relative lack of novelty and difficulty of the issues.  The judge observed that "time alone cannot be the sole evidence for determining a fee for, were it so, it might encourage unnecessary litigation."   In concluding that "an inordinate amount of time used . . . was nonproductive," Judge Sommer found that the flagman citation "was a pedestrian problem requiring no significant time or research effort" and that out of over 700 pages of testimony, the flagman citation covered no more than 20.  In view of the simplicity of the issues, Judge Sommer concluded that a reasonable amount of time to defend against the citation was 33 hours, compensable at $75 per hour, for a total of $2,475.

Hopke claims that the judge's finding on how much Hopke should have incurred "is based on nothing more than his own speculation and subjective judgment as to how [Hopke's] attorneys should have discharged their professional responsibilities." Hopke claims that the judge was required to form his views based solely on the unrebutted record of Hopke's expenditures, and that he had no discretion to reduce an award in the absence of a finding that Hopke "unduly and unreasonably protracted the final resolution of the matter in controversy" under 5 U.S.C. 504(a)(3).

Hopke's arguments take no cognizance of the "reasonableness" limitations in the EAJA, particularly 5 U.S.C. 504(b)(1)(A) and the Commission's rules of procedure.  One of the Commission's rules, 29 C.F.R. 2204.107(c)(4), expressly requires the judge to consider "the difficulty or complexity of the issues" in determining the reasonableness of the fees actually paid.  In deciding whether the hours spent were reasonable, the courts have held a judge may consider the complexity of the case and the novelty of the issues involved and may weigh the hours against his own knowledge, experience, and expertise of the time required to complete similar activities.  See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974).[[4]]  Accordingly, it is appropriate for the judge to bring to bear considerations outside of the record such as his knowledge, expertise and experience in occupational safety and health law.  How complex or difficult a case is, how much effort a certain citation requires, call for judgments that are, at least in part, of necessity subjective; in any event, they cannot be determined simply from the face of an attorney's affidavit that he charged a client a certain fee, nor are they entirely susceptible to conventional proof.  We also observe that to the extent that conventional proof can be of value, it is the burden of the applicant to show the reasonableness of its claim.  We must, therefore, reject Hopke's argument that Judge Sommer lacked the authority to award less than its attorney actually charged.  We also see no reason to overturn Judge Sommer's determination of what a reasonable fee is.

The parties also debate various other details of Judge Sommer's calculation of the fees and expenses Hopke should be awarded.  We find that Judge Sommer made a reasonable calculation of the amount Hopke should receive, and affirm his award on citation 1.

Citation 2:  29 C.F.R. 1926.652(d) & (k), trench boxes

In his decision on the merits, Judge Sommer vacated citation 2, in which the Secretary alleged that Hopke violated two trench standards.  In his decision on the fee application, however, Judge Sommer held that the Secretary had established substantial justification.  The judge noted that he had vacated citation 2 because there emerged at the trial varying estimates of certain critical trench dimensions.  Judge Sommer stated, however, that the material in possession of the Secretary when he issued and litigated the citation "was persuasive that there was in fact and law a violation. . . "

On review, Hopke raises for the first time in this EAJA proceeding several lengthy and detailed arguments to support its position that Judge Sommer erred on the substantial justification issue.  These arguments challenge the validity of a post-citation amendment, the Secretary's interpretation of the standards, and the validity of one standard.

We first note that none of Hopke's arguments were raised before Judge Sommer in the EAJA phase of this litigation as reasons for a lack of substantial justification.  Judge Sommer's decision vacating the citation rested on his finding that certain trench measurements were incorrect.  Hopke's petition for fees did not suggest any other grounds for finding a lack of substantial justification.   The Secretary's response to the application discussed only the ground for vacation mentioned in the judge's decision. Finally, during the six-month interval between the filing of the Secretary's opposition to the fee application and the judge's final decision on the application, Hopke did not bring to the judge's or the Secretary's attention that there might be reasons for finding a lack of substantial justification other than the reason the judge had given for vacating the citation.  Inasmuch as Hopke did not give Judge Sommer the opportunity to rule on other substantial justification issues, we will not consider them now.[[5]]

Although we do not pass on Hopke's additional issues, we see reason to doubt their merit in an EAJA proceeding.  Hopke essentially argues that the Secretary's litigating position was in error, but we are not, in an EAJA proceeding, called upon to decide the correctness of a fee applicant's arguments that a citation lacked merit.  Rather, our task is to determine whether the Secretary was or should have been aware that the citation lacked substantial justification.  At least some of the issues now raised by Hopke are complex and are of the sort over which reasonable men could differ; we doubt that even close scrutiny would show that the Secretary's positions could be termed weak or tenuous.  Other issues were not presented in a way that would have made the Secretary aware of a weakness, if any, in his case.  For example, Hopke's amended answer broadly pleaded that "the construction safety standards at issue were not promulgated or adopted in accordance with law and are null and void."  Hopke failed to explain, until it filed a post-hearing brief, its theory that one of the cited trenching standards is invalid because it differs substantively from the established federal standard it was derived from, an argument that requires resort to Federal Register issues of early 1971 to evaluate.  The Secretary is entitled to presume that the version of a standard in the current edition of the Code of Federal Regulations is valid.[[6]]  He therefore was justified in prosecuting the citation at least until this invalidity argument clearly appeared--here, when the post-hearing brief was filed.[[7]]  Hopke has made no claim for fees and expenses incurred thereafter on that issue.

Accordingly, the judge's decision on the fee application is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  October 10, 1986


SECRETARY OF LABOR
Complainant

v.

WILLIAM B. HOPKE COMPANY, INC.
Respondent

DOCKET NUMBER 81-0206

DECISION AND ORDER

Petitioner William B. Hopke Company, Inc., a prevailing party on two of three citations issued by the Secretary of Labor seeks an award of attorney's fees and other expenses pursuant to 28 U.S.C. 2412, a provision of the Equal Access to Justice Act (EAJA), P.L. 96-481, Title II, 94 Stat. 2325 (1980).

In an interim decision dated November 19, 1982[[1/]] Respondent was found to be the prevailing party as to the violation alleged of 29 C.F.R. 1926.1903.2(a)(1).  As to the alleged violation of 29 C.F.R. 1926.652(k) (later amended to add 29 C.F.R. 1926.652(d)) the Secretary was found to have substantial justification for proceeding against the Respondent on this violation and no attorney fee is allowable.  The decision found the Respondent entitled to attorney's fees and costs relating to the defense of serious Citation No. 1 alleging violation of 29 C.F.R. 1926.201(a)(2) and the Respondent was directed to submit in detail an application for fees and costs relating solely to the legal defense of this violation.

On December 3, 1982, Robert D. Moran, attorney for the Respondent, filed an application for attorney's fees and costs concerning the defense of 29 C.F.R. 1926.201(a)(2) for both himself and for E. Waller Dudley, Esquire.  Mr. Moran specified that he had expended 69.30 hours at the allowable rate of $75.00 per hour for a total fee request of $5,197.50 plus disbursements of $649.34 for a total of $5,846.84.  Mr. Dudley claimed a total of 11.9 hours at rates of $70.00 to $75.00 per hour totaling $852.50 plus $34.10 of disbursements for a total of $886.60.

Under the EAJA at 5 U.S.C. 504(a) an "agency that conducts an adversary adjudication" is authorized to "award to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency as a party to the proceeding was substantially justified or that special circumstances make an award unjust."

Under the EAJ Act's provision at 5 U.S.C. 504(b)(1)(a) the amount of fees awarded to the attorney must be "reasonable" with a $75.00 per hour limit set unless the agency provides otherwise.[[2/]]

Having prevailed in its defense of the alleged violation of serious Citation No. 1, and there are no special circumstances which would make an award unjust, we are faced with the question whether the attorney's fees and expenses requested are reasonable.

A petition for fees and expenses was submitted by two attorneys, i.e. Robert D. Moran, Esq. and E. Waller Dudley, Esq.  Mr. Dudley apparently was initially retained herein, and was superceded by Mr. Moran. The petition of Mr. Dudley covers the period of December 30, 1980 through and including March 23, 1981, and requests the sum of $852.50 for legal fees spanning 11.9 hours, and expenses of $34.10.  Mr. Moran's petition covers the period of March 11, 1981 through and including November 22, 1982 and requests the sum of $5,197.50 for legal fees and $649.34 for disbursements.

Firstly, concerning the application of Mr. Dudley it is noted that he initially alleged 35.1 hours of legal services with a total fee of $2,973.00.  After the interim decision which disallowed any legal fees for the trenching violation, and requested a fee application only for legal work involving the defense of the flag waving violation (29 C.F.R. 1926.201(a)(2)) his application listed 11.9 hours of work for a total fee of $852.50 (3 hours of Mr. Dudley's services were at the allowable rate of $75.00 per hour, and two associates were 8 hours at $70.00 an hour).

In submitting this amended fee application Mr. Dudley alleges the time spent on the improper signaling issue is approximately one third the previously submitted bill.

A review of the fee petition reveals that about two thirds of the legal services listed or 8 hours, are described as conferences and sheds no further light on actually what if any thing transpired which related to the sole remaining legal problem, i.e. the improper signaling.  Whether it was Mr. Dudley or his associates that conducted these conferences is not stated.  Of course, their time would not come close to being as valuable as one of the principal attorneys.  As to the remaining four hours, one could conclude it consisted of research, answering pleadings, filing a notice of contest, etc.  In short, the petition submitted fails woefully in fully describing and delineating the legal activities performed by each of the attorneys.  Considering that only work performed in connection with the signaling violation is recompensable, the relative simplicity of this issue, and the lack of proper documentation by Mr. Dudley, I think it is reasonable that he be allowed four (4) hours at $75.00, and two (2) hours at $70.00 for his associates, or a total fee of $440.00.   Costs alleged which were based on a percentage of his legal bill are unacceptable.   There being no active demonstration of other costs this item is disallowed.

Concerning the application of Mr. Moran, initially he alleged 124 hours of legal services at rates of $100.00 to $125.00 totaling $15,216.84.  In his amended petition relating solely to the signaling violation he alleges 69.30 hours expended at the allowable rate of $75.00 amounting to $5,197.50.   It is noted that in his amended application while seeking a $75.00 hourly reimbursement because of the statute constrictions, part of the services were allegedly performed at $100.00 per hour, and part at $125.00. Apparently another unnamed individual worked with Mr. Moran on the case.  While it is acknowledged that Mr. Moran is an experienced knowledgeable attorney, with great legal talent in the occupational safety and health area, there is no evidence demonstrating the skills and background of whoever else worked on this matter (their background, skill and legal acumen might not be billable at $75.00 an hour).

The issue to be resolved is whether the fees and expenses requested are reasonable.  Determination of the reasonableness of a fee request would necessarily start with as the court stated in Copeland v. Marshall, 642 F.2d 880, 891 (D.C. Cir. 1980), "the 'lodestar:'  the number of hours reasonably expended multiplied by a reasonable hourly rate."  However, time alone cannot be the sole criteria for determining a fee, for were it so, it might encourage unnecessary litigation.  "No compensation is due for nonproductive time."  Copeland v. Marshall, supra, 641 F. 2d at 891.

Additionally in determining the reasonableness of a fee application, other criterion can be utilized.  Of cardinal importance is the "novelty and difficulty of the questions" Johnson v. Georgia Highway Express, Inc., 448 F.2d 714, 718 (5th Cir. 1974).  The instant matter neither presented a novel issue nor one of inherent difficulty.  The signaling citation at issue was a question of law, as to the statutory construction of "should" or "shall".  It was a pedestrian problem requiring no significant time or research effort either at the pre-trial level or at the trial.  This can be readily seen when it is observed that in a five day trial this particular issue took no more than between 1-1/2 to 2 hours of complete examination (out of approximately 750 pages of testimony, this required no more than 20 pages).

There is no gainsaying that the legal services of Mr. Moran herein were expert, and that he possesses outstanding legal expertise and skills in the occupational safety and health field.  His skills resulted in a dismissal of the signaling violation.

However, after my full analysis of the violation alleged, its relative simplicity, the time required for trial it is apparent that the alleged time expended and for which a fee application has been filed is excessive.   For example, trial and trial preparation of this simple signaling citation is alleged to have consumed 18 hours, with the post-trial brief consuming 34.5 hours.   Considering the legal question at issue, it is apparent that an inordinate amount of time used herein was nonproductive, and not compensable.

Taking into consideration the question of law involved, the pre-trial and trial procedures herein relating thereto, and all other legal services including research required on this issue, I believe that a reasonable amount of time spent both preparing and trying this case amounted closer to 33 hours or one third of the time alleged.  The attorney has not demonstrated his entitlement to the amount of fee requested be awarded to him.  Accordingly, I find he is entitled to receive a fee of $2,475.00 for attorney's fees herein.  In a like manner he is not entitled to be fully reimbursed for fees expended of $649.34.  These fees covered all of the three citations.  For instance, the completed 700 plus page transcript cost $592.13, but the signaling issue which is solely before this tribunal covered no more than 20 pages; costs applicable only to this item can be reimbursed.  In short, I find that petitioner is entitled to a total reimbursement of one third of the costs alleged or the sum of $216.45 under all the existing facts and circumstances.

Findings

1-8.  The findings set forth in the interim decision dated November 19, 1982, are hereby reaffirmed and made part of this decision.

9.  Pursuant to the order dated November 19, 1982, an application for attorney's fees and costs relative to the alleged violation of 29 C.F.R. 1926.201(a)(2) was filed.

10.  The issue in the proceeding concerning the defense of the alleged violation of 29 C.F.R. 1926.201(a)(2) was not difficult or complex.

11.  The petition for attorney's fees indicated an inordinate length of time spent in the representation of the Respondent considering the nature of the case.

12.  Considering the lack of difficulty or complexity of the issues concerning the defense of the alleged violation of 29 C.F.R. 1926.20(a)(2) the attorney's fees and costs petitioned for were unreasonably high.

13.  Considering the complexity of the case, the time reasonably required in defense, the skills necessary to defense this particular violation alleged, and the professional standing and expertise of the attorneys they are entitled to the following fees and costs:

Robert D. Moran, Esq., Fee          $2,475.00
                                    Costs          216.45
                                    TOTAL    $2,693.45

E.  Waller Dudley, Esq., Fee          $440.00
                                     Costs            -0-
                                     TOTAL   $440.00

Conclusions of Law

1.  William B. Hopke Company, Inc. is an eligible prevailing party under the Equal Access to Justice Act as to Citation No. 1 which alleged a violation of 29 C.F.R. 1926.201(a)(2) and Citation No. 2 which alleged a violation of 29 C.F.R. 1926.652(k) (later amended to add 29 C.F.R. 1926.652(d).

2.  The Commission has jurisdiction over the parties and subject matter.

3.  The Secretary of Labor was substantially justified in its action against the Respondent alleging violation of 29 C.F.R. 1926.652(k) (amended to add 29 C.F.R. 1926.652(d)).

4.  Respondent is not entitled to an award of attorneys fees and costs pursuant to 28 U.S.C. 2412 with respect to Citation No. 2 which alleged a violation of 29 C.F.R. 1926.652(k) (amended to add 29 C.F.R. 1926.652(d)).

5.  The Secretary of Labor was not substantially justified in its action against the Respondent with respect to Citation No. 1 which alleged a violation of 29 C.F.R. 1926.201(a)(2).

6.  William B. Hopke Company, Inc. is entitled to reasonable attorney's fees of $2,475.00, and reasonable costs of $216.45 or a total of $2,691.45 for Robert D. Moran, Esq. and for a reasonable attorney's fee of $440.00 and no costs for E. Waller Dudley, Esq.

ORDER

The petition of William B. Hopke Company, Inc. for attorneys' fees and expenses under the Equal Access to Justice Act is hereby granted to the extent that the petitioner is awarded a total of $3,131.45 for fees and $216.45 for expenses.

IRVING SOMMER
Judge, OSHRC

Dated:  February 17, 1983
Washington, D.C.


SECRETARY OF LABOR
Complainant

v.

WILLIAM B. HOPKE COMPANY, INC.
Respondent

DOCKET NUMBER 81-0206

DECISION AND ORDER

Sommer, Judge

Petitioner William B. Hopke Company, Inc., a prevailing party on two of three citations issued by the Secretary of Labor seeks an award of attorney's fees and other expenses pursuant to 28 U.S.C. 2412, a provision of the Equal Access to Justice Act (EAJA), P.L. 96-481, Title II, 94 Stat. 2325 (1980).

Section (d)(I)(A) of 28 U.S.C. 2412 provides, in pertinent part:

"(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust."

The legislative history indicates that the test of whether the government was substantially justified is one of reasonableness.  H. Rep. No. 1418, 96th Cong., 2d Sess., p. 10 (1980), reprinted in U.S. Code Cong. & Ad. News 4989.  While the burden is on the government to demonstrate its action was substantially justified, "the standard, however, should not be read to raise a presumption that the government position was not substantially justified, simply because it lost the case.  Nor, in fact, does the standard require the government to establish that its decision to litigate was based on a substantial probability of prevailing..." H. Rep. No. 96-1418 supra at 4948-4990 (1980).

In the present case the Secretary of Labor issued three citations to the Respondent which alleged:  1) serious violation of 29 C.F.R. 1926.201(a)(2); 2) willful violation of 29 C.F.R. 1926.652(k) (later amended to allege violation of 1926.652(d) in addition); and 3) nonserious violation of 29 C.F.R. 1903.2(a)(1).

The Respondent was the prevailing party in the section as to the alleged violation of 29 C.F.R. 1926.201(a)(2) and 29 C.F.R. 1926.652(k) and the amendment.  It did not prevail as to 29 C.F.R. 1903.2(a)(1).

As to 1926.652(k) and 1926.652(d) the Secretary contended that trench boxes (or shields) being used by the Respondent in a trench excavation were ineffective to the bottom of the trench causing a hazard to the employees of possible trench cave-in.  The proof established that a trench box within three feet of the trench bottom is effective to the bottom thereof.  The Secretary introduced evidence demonstrating that the trench boxes ranged from 3 feet to approximately 6 feet above the trench bottom:  these were based on estimates by the compliance officer.  There was other evidence suggesting that the trench boxes were approximately 4 feet above the trench bottom.  In view of the varying estimates and the conflict existent, this citation was vacated as not being proven by a preponderance of the evidence as required.

However, this does not signify that the Secretary's action in issuing the citation and pursuing it to trial was not substantially justified. It is apparent that the Secretary's actions were done in good faith and for a legitimate purpose under the Occupational Safety and Health Act.  The material in possession of the Secretary at the time of the issuance of the citation and subsequent trial was persuasive that there was in fact and law a violation of the section charged.  It was not until the rebuttal material which was received at the trial was considered together with all the available evidence that it was concluded that the weight of the evidence did not demonstrate a violation by the preponderance required.  However, based on all the evidence it cannot be said that the Secretary's position was not a reasonable one.  In short, the Secretary's position cannot be judged on 20/20 hindsight.  The evidence possessed at the time of the issuance of the citation and subsequent trial demonstrate that the Secretary was substantially justified in proceeding against the Respondent on this alleged violation.

As to the alleged violation of 29 C.F.R. 1926.201(a)(2) which was held to be merely advisory in nature and therefore not a valid basis for finding a violation existed, the contention of the Secretary that he was justified in the enforcement of this violation is without merit.  The Commission cases are legion holding that standards adopted from advisory source standards are advisory under the Act.  See Brown and Root, Power Plant Division, 9 BNA 1027 (1980), and cases cited therein.  The Secretary has not succeeded in showing its actions concerning this citation were substantially justified, and I further find no special circumstances which would make an award unjust.

The Secretary alleges no fee can be paid for services rendered prior to October 1, 1981, the effective date of the Equal Access to Justice Act.  This allegation is without merit. While neither the statute nor legislative history are helpful in determining this question, the courts that have faced it have acknowledged that to deny such benefits to work commenced before October 1, 1981, would not do justice to the intent of the legislation.  See Berman v. Schweiker, No. 80-C2737 (N.D. Ill. Feb. 16, 1982) and Photo Date v. Sawyer, C.A. No. 81-2435 (Feb. 22, 1982).  Therefore, in the instant matter where there are recoverable costs and fees, those incurred prior to October 1, 1981, may be recovered.

FINDINGS OF FACT

1.  William B. Hopke Company, Inc. is a corporation that has a net worth less than $5,000,000 and employs less than 500 persons.

2.  On December 22, 1980, William B. Hopke Company, Inc. was issued a serious citation alleging violation of 29 C.F.R. 1926.201(a)(2), a willful citation alleging violation of 29 C.F.R.  1926.652(k) (later amended to add 1926.652(d)), and a citation alleging a nonserious violation of 29 C.F.R. 1903.2(a)(1).

3.  After trial before Judge Sommer a decision was issued dated February 16, 1982, and which became a final order of the Commission on March 18, 1982 finding that the citations alleging violations of 29 C.F.R. 1926.201(a)(2) and 29 C.F.R. 1926.652(d) & (k) were not proved and the citations were vacated.

4.  The citation alleging a violation of 29 C.F.R. 1903.2(a)(1) was affirmed and no penalty assessed.

5.  On April 6, 1982, William B. Hopke Company, Inc. filed an application with the Commission for attorney's fees and other expenses pursuant to the Equal Access to Justice Act.

6.  Said application was dismissed without prejudice to refiling by Judge Sommer on July 13, 1982 because of failure to follow filing requirements in the regulations (29 C.F.R. 2204.22).

7.  After receipt of the necessary exhibits from the Hopke Company, the Commission on August 9, 1982, vacated the dismissal and remanded the application to Judge Sommer for determination.

8.  Upon remand by the Commission, the undersigned thereupon considered the application of the Hopke Company under the Equal Access to Justice Act on the merits.

CONCLUSIONS OF LAW

1.  William B. Hopke Company, Inc. is an eligible prevailing party under the Equal Access to Justice Act as to Citation No. 1 which alleged a violation of 29 C.F.R. 1926.201(a)(2) and Citation No. 2 which alleges violation of 29 C.F.R. 1926.652(k) (later amended to add 29 C.F.R. 1926.652(d)).

2.  The Commission has jurisdiction over the parties and subject matter.

3.  William B. Hopke Company is not entitled to an award of attorney's fees and costs pursuant to 28 U.S.C. 2412 with regard to Citation No. 2 alleging a violation of 29 C.F.R. 1926.652(k) (amended to include 29 C.F.R. 1926.652(d)).  However, Hopke Company is entitled to attorney's fees and costs relating to the defense of serious Citation No. 1 alleging violation of 29 C.F.R. 1926.201(a)(2).  Since the application for fees and costs does not state in detail that portion of the fee and costs requested which concerns itself solely with the defense of this item, the William B. Hopke Company is directed to submit to the undersigned within fifteen days after receipt of this decision an application for fees and costs incurred only in defense of 29 C.F.R. 1926.201(a)(2). Any other costs and fees shall be excluded.  The statement submitted shall be fully itemized setting forth the actual time expended on this item and rate at which fee is computed.  The Secretary may respond to the amended application for fees and costs within ten days after receipt of a copy thereof.

IRVING SOMMER
Judge, OSHRC

Dated: 
Washington, D.C.


WILLIAM B. HOPKE COMPANY,
INC.,
Petitioner,

v.

SECRETARY OF LABOR,
Respondent.

OSHRC Docket No. 81-0206

DIRECTION FOR REVIEW AND REMAND ORDER

Respondent's petition for discretionary review is GRANTED pursuant to Commission Rule of Procedure 92(a), 29 C.F.R. 2200.92(a), and Rule 309 of the Commission's Rules Implementing the Equal Access to Justice Act (EAJA), 29 C.F.R.   2204.309.

Respondent's application for fees and expenses was dismissed below for failure to include a detailed exhibit showing the net worth of the applicant at the relevant date, as required by 29 C.F.R. 2204.202.  Respondent subsequently has submitted a detailed statement of net worth and requests in its petition that the judge's order of dismissal be vacated and the application remanded for consideration on the merits.

Upon consideration of the record, the judge's order of dismissal is VACATED and the case is REMANDED to the administrative law judge to consider the matters raised by the petition for discretionary review.

IT IS SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  August 9, 1982



WILLIAM B. HOPKE COMPANY, INC.

Petitioner

v.

SECRETARY OF LABOR

Respondent

DOCKET NUMBER 81-0206

ORDER

On April 6, 1982, William B. Hopke Company, Inc. filed an application with the Occupational Safety and Health Review Commission for attorney's fees and other expenses pursuant to the provisions of the Equal Access to Justice Act, Pub. L. No. 96-481, 94 Stat. 2325 and the Commission's implementing regulations set forth in 29 C.F.R. Part 2204.  On May 17, 1982, the Secretary filed a motion to dismiss the application and an answer in opposition thereto.

There is no need at this time to go into the merits of the application.  The applicant must first qualify as a business ". . . eligible to receive an award" under 5 U.S.C. 504(a)(2).  The Commission's regulations require that the applicant provide ". . . a detailed exhibit showing the net worth of the applicant" as of the date specified by 2204.105(c).  The applicant herein has failed to follow the requirements listed in Subpart B, 2204.202 of the regulation.  As such, initially his application does not qualify.

Accordingly, motion by the Secretary to dismiss the application is granted without prejudice to a refiling.

IRVING SOMMER
Judge, OSHRC

DATED:  July 13, 1982
Washington, D.C.

FOOTNOTES:

[[1]] 5 U.S.C. 504(a)(1) & 504(b)(1)(B); H.P. Fowler Contracting Corp., 84 OSAHRC 9/A2, 11 BNA OSHC 1841, 1843, 1983-84 CCH OSHD 26,830, p. 34,356 (No. 80-3699, 1984); 29 C.F.R. 2204.106(a) (burden of establishing substantial justification on Secretary).

[[2]] 29 C.F.R. 2204.106(a).  But see H.R. Rep. No. 120, Part I, 99th Cong., 1st Sess. 9 (1985) (substantial justification test "means more than merely reasonable"), reprinted in 1985 U.S. Code Cong. & Ad. News 132, 138.

[[3]] H.R. Rep. No. 1418, 96th Cong., 2d Sess. at 14, reprinted in 1980 U.S. Code Cong. & Ad. News at 4993.

[[4]] See also Hensley v. Eckerhart, 103 S.Ct. 1933, 1939 & n.7, 1940-41 (1983); Action on Smoking & Health v. C.A.B., 724 F.2d 211, 221 (D.C. Cir. 1984)(applicant may not recover for hours that are excessive, redundant, or otherwise unnecessary); Miller v. Hotel & Restaurant Employees & Bartenders Union, 107 F.R.D. 231, 243 (N.D. Ca. 1985).

[[5]] See 29 C.F.R. 2200.92(d) (1985), Commission Rule 92(d)(parties must ordinarily raise issues before judge first); J.L. Manta Plant Services Co., 82 OSAHRC 61/A2, 10 BNA OSHC 2162, 1982 CCH OSHD 26,303 (No. 78-4923, 1982); see also new Commission Rule 92(c) (Commission ordinarily will not review issues judge did not have opportunity to pass upon), 51. Fed. Reg. 32002, 32027 (Sept. 8, 1986), to be codified at 29 C.F.R. 2200.92(c).

[[6]] See the Federal Register Act, 44 U.S.C. 1507; Leader Evaporator Co., 76 OSAHRC 61/D2, 4 BNA OSHC 1292, 1976-77 CCH OSHD 20,781 (No. 5225, 1976); George C. Christopher & Sons, 82 OSAHRC 9/A2, 10 BNA OSHC 1436, 1443, 1982 CCH OSHD 25,956, p. 32,531 (No. 76-647, 1982)(burden of proving substantive change on employer).

[[7]] We of course have no occasion here to pass upon the merits of Hopke's validity argument or whether the Secretary would have been substantially justified in prosecuting the citation after the argument clearly appeared.

[[1/]] Decision did not fully cover plaintiff's application inasmuch as additional information was requested.

[[2/]] A higher amount may be awarded if the agency determines by regulation that an increase in the cost of living or special factors justifies a higher fee.  5 U.S.C. 504(b)(1)(A).  The Commission has issued no regulation.