An order of Administrative Law Judge William E. Brennan dismissing Respondent Beiro's application for fees and expenses under the Equal Access to Justice Act, 5 U.S.C. 504 ("EAJA"), is hereby directed for review.

Judge Brennan dismissed the application on the basis that review of the Commission's final order on the adversary adjudication for which fees and expenses are sought is pending in the United States Court of Appeals. [[1]]  Beiro contends that the judge's action was improper because some of the citation items on which it prevailed in the underlying adjudication are not at issue in the pending court proceedings. [[2]]   Beiro requests that the Commission reinstate its EAJA application as to those citation items for which court review has not been sought.  The Secretary joins in Beiro's request.

We agree with the parties that the judge's order of dismissal was erroneous.   The Commission's rules implementing the EAJA provide as follows:

If review of a Commission decision, or any item or items contained in that decision, is sought in the court of appeals under section II 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 . . . as to the item or items of which review is sought.

29 C.F.R. 2204.302(c), emphasis added.

This rule clearly intends that in a case such as this, where the appellate court is asked to review only a portion of the Commission's adjudication, the Commission retains jurisdiction over an EAJA application as to those items which are not the subject of court proceedings. [[3]]

Accordingly, the judge's order of dismissal is set aside, Beiro's EAJA application is reinstated as to those citation items for which no appellate review has been sought, and this matter is remanded for further proceedings.


Executive Secretary

Dated:  FEB 13 1984

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[[1]] Donovan v. A.A. Beiro Constr. Co, No. 83-2008 (D.C. Cir. Sept. 23, 1983); A.A. Beiro Constr. Co. v. OSHRC, No. 83-2053 (D.C. Cir. Oct. 5, 1983).

[[2]] Judge Brennan, in his decision on the merits of the citation items, vacated six items for failure of proof by the Secretary.  The Secretary withdrew other items prior to hearing.  The Commission did not direct review of the judge's decision, and thus it became a final order pursuant to 29 U.S.C. 661(i).  The Secretary's brief filed before the court of appeals takes exception only to the judge's disposition of two of the contested citation items.

[[3]] For this reason, this case is distinguishable from Federal Clearing Die Casting Co., 11 BNA OSHC 1157, 1983 CCH OSHD 26,423 (No. 80-2903, 1983), on which the judge relied.  In that case, the Commission judge suppressed the Secretary's evidence and dismissed the citations on the basis that the Secretary's inspection warrant was invalid.  Thus, the Secretary's petition for appellate review of that decision placed the judge's entire disposition before the court.