SECRETARY OF LABOR,
Complainant,
v.
PHOENIX ROOFING, INC.

Respondent,

OSHRC Docket No. 87-0255

ORDER OF REMAND

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

This case is before the Commission on remand from the United States Court of Appeals for the Fifth Circuit. Secretary of Labor v. Phoenix Roofing. Inc., 922 F.2d 1202 (5th Cir. 1991). In its decision, the Fifth Circuit reversed and remanded a decision of Administrative Law Judge Louis G. LaVecchia that granted, in substantial part, the employer's application for attorney's fees under the Equal Access to Justice Act, 5 U.S.C. §504 ("EAJA").

The court noted that, under the EAJA, fees can only be awarded where the fee applicant was the prevailing party in the underlying action and where the Secretary has failed to establish that her actions were "substantially justified.," 5 U.S.C. §504(a)(1). The court noted that while the judge found the employer to be the prevailing party, he failed to make an explicit finding regarding whether the Secretary's actions were "substantially justified." Therefore, it remanded the matter to the commission to determine whether the Secretary established that her actions were "substantially justified."

For the reasons stated by the Fifth Circuit, we remand this case to Judge LaVecchia and direct him to find whether the Secretary was "substantially justified" in issuing and prosecuting the citations against Phoenix Roofing, and to render a decision consistent with that finding. Pursuant to Commission Rule 103, 29 C.F.R. §2200.103, we order that further proceedings in this case be expedited.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G Wiseman
Commissioner

Dated: April 24, 1991

SECRETARY OF LABOR,

Complainant

v.

PHOENIX ROOFING, INC.,

Respondent.

OSHRC

Docket No. 87-0255

Award of Fees & Expenses
Under the Equal Access to
Justice Act

The applicant for an award under the Act described above was the prevailing party in the proceeding leading up to this application. Its application has been considered, along with a response in opposition by the complainant. Complete atomization of the work performed by the respondent's attorney is not possible, of course, but the undersigned judge, drawing upon his own experience in similar matters as both attorney and judge, is of the opinion that the claim for $8,584.33 is fair and equitable in the circumstances shown. Accordingly, the application is granted, without the necessity for further proceedings.

However, the application for a supplemental award of $825.00 is denied. The respondent's position in respect of the supplemental application is that the complainant's objections to the initial application were responsible for its filing of a response, and that the preparation of the response entailed work totaling $825.00 in value.

The respondent's response to the complainant's objections to the original application for an award was not necessary, in my opinion, since it was not requested by me, nor is there anything in the Act which justifies the award of attorneys' fees for voluntary responses of that nature.

So ORDERED.

Louis G. LaVecchia
Judge, OSHRC

Dated: November 3, 1989
Dallas