SECRETARY OF LABOR,

	

 

Complainant,

	

 

v.

	

  OSHRC DOCKET NO. 02-2129

SAIPAN KOREANA HOTEL,

and its successors,

	

 

Respondent.

	

 


 

DECISION AND ORDER ON REMAND

 

As noted by the Commission in its order dated February 2, 2006, the
Secretary of Labor formally withdrew her substantial justification
objection to Respondent’s fee application in this matter filed pursuant
to the Equal Access to Justice Act (EAJA, 5 U.S.C. 8504). The withdrawal
was communicated to the Commission and Respondent by letter dated
July 15, 2005. By letter dated October 27, 2006, Respondent submitted a
schedule of expenses and fees incurred, with supporting documentation,
during the period December 2, 2002 to October 15, 2005, as follows:

                       $ 4,935.48 expenses

           $19,537.50 attorney fees at $125 per hour


Throughout this litigation Respondent has vigorously pursued reasonable
defenses to Complainant’s allegations; in particular, the defense that
the Secretary of Labor did not possess jurisdiction over Respondent’s
worksite and Respondent’s reasonable position that it had a right to
receive a determination of that issue in this litigation notwithstanding
Complainant’s motion to dismiss the citation. Thus, the fees and
expenses incurred by Respondent, as set forth above, are reasonable.
Moreover, Complainant’s tenacious refusal to acknowledge at an earlier
date that she was not substantially justified in bringing this action in
the first instance, unreasonably protracted this litigation causing
Respondent to incur additional fees and expenses.

Accordingly, since Respondent has been found to be an eligible
prevailing party and the Secretary now concedes that she was not
substantially justified in pursuing this matter against Repondent,
Complainant is directed to pay $24,472.98 to Respondent pursuant to the
EAJA Act.

 

SO ORDERED.

 

                                                                                    /s/




Dated: December 19, 2006

	

  

	

Robert A. Yetman

Judge, OSHRC