“SECRETARY OF LABOR,Complainant,v.CENTRAL BRASS MANUFACTURINGCo.,Respondent.OSHRC Docket Nos. 86-0978 &86-1610_DECISION AND ORDER_BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:At issue in this case is whether Administrative Law Judge Edwin G.Salyers erred in his award of attorney fees and expenses to Respondent,Central Brass Manufacturing Co. (\”Central Brass\”). We find that thejudge erred in certain aspects of his methodology and we adjust theaward accordingly.On June 25, 1986, the Secretary of Labor issued two citations to CentralBrass.[[1\/]] These citations alleged various violations of the noise,lead and silica dust standards. Several items were withdrawn by theSecretary before the hearing. Others were either withdrawn at thehearing by the Secretary, disposed of after trial, or conceded byCentral Brass. After the judge’s decision became final, Central Brassapplied for attorney fees under the Equal Access to Justice Act, (\”theEAJA\”), 5 U.S.C. ? 504. The company sought a total of $79,438.50 inattorney fees and $7,918.63 in expert witness fees and expenses. Onseveral items where the applicant prevailed, Judge Salyers determinedthat the Secretary’s position was substantially justified and deniedrecovery. On five items, however, the judge determined that theSecretary’s position was not substantially justified and that recoveryunder the EAJA was appropriate.The judge awarded a total of $13,250 to cover fees and expensesassociated with these items. For those items withdrawn by the Secretarybefore the hearing, the judge awarded Respondent $7500 in attorney fees[[2\/]] after pro rating the total hours claimed, for the period of timebefore the withdrawal, by the percentage of items eligible for an award.For the item that went to hearing, the judge awarded $3750 in attorneyfees. This included 36 hours for time spent in connection with thehearing and 14 hours allocated to time spent obtaining a deposition. Thejudge also awarded a total of $2000 to cover the applicant’s expensesfor the various items.The Secretary filed a petition for review with the Commission objectingto the award. The case was directed for review by former Chairman E.Ross Buckley. The primary issues on review before the Commission arewhether the judge erred in the following respects: (1) by pro rating theapplicant’s total attorney fees and expenses for the items withdrawnbefore the hearing on the assumption and without specific evidence thatthe amount of time spent on each citation item was the same; (2) byawarding fees for time spent obtaining a deposition; and (3) byincluding in the award fees and expenses incurred before the citationswere issued. Neither party disputes the judge’s determination of whichcitation items were eligible for an award under the EAJA.IAt the outset, Central Brass contends that, in reviewing an EAJA awardmade by an administrative law judge, the Commission must affirm thejudge unless it finds that the judge abused his discretion. In supportof its position, the applicant points out that the \”abuse of discretion\”standard is used by appellate courts when reviewing attorney’s feeawards made in the district courts. _Hensley v. Eckerhart,_ 461 U.S.424, 437, 103 S.Ct. 1933, 1941 (1983). We disagree.The portion of the EAJA that entitles parties to recover costs and feesfrom the federal government after judicial proceedings is codified at 28U.S.C. ? 2412. In _Pierce v. Underwood,_ 437 U.S. 552, 108 S.Ct. 2541(1988), the Supreme Court held that appellate review of EAJA awards madein the district courts, under 28 U.S.C. ? 2412, are to be conductedunder the \”abuse of discretion\” standard. In reaching this conclusion,the Court noted that administrative proceedings under the EAJA aregoverned by 5 U.S.C. ? 504 and that, under 5 U.S.C. ? 504(c)(2),appellate courts must use the \”substantial evidence\” test as theirstandard of review of EAJA awards made by administrative agencies.[[3\/]]However, the Review Commission is an administrative agency, not anappellate court. There is nothing in the EAJA to indicate any standardof review for internal agency review of EAJA awards made by the agency’sadministrative law judges. Absent authority to the contrary, theAdministrative Procedure Act (\”APA\”) in 5 U.S.C. ? 557(b), whichnormally governs our proceedings, sets forth our standard of review ofEAJA applications decided by Commission judges. The APA permits _de novo_review. Accordingly, we reject the applicant’s contention that we mustapply an \”abuse of discretion standard,\” and hold that judges’ awardsunder the EAJA are to be reviewed by the Commission _de novo._IIIn its application, Central Brass’ attorneys claimed to have spentapproximately 400 hours on the case before the Secretary withdrew fourof the items for which the judge granted an award under the EAJA. Thejudge noted that these four items represented approximately one quarterof the items contained in the citations. After pro rating the 400 hoursspent up until that point, he determined that the applicant was entitledto be compensated for 100 hours of attorney fees at the statutory rateof $75 per hour, for a total of $7500 for that portion of the application.The Secretary makes three arguments in support of her contention thatthis portion of the award was improper. First, she contends that thejudge erred by including attorney fees incurred before the notice ofcontest was filed, and therefore, before the \”adversary adjudication\”began. Second, the Secretary argues that the judge erred by pro ratingthe total hours by the percentage of items eligible for an award. Sheclaims that such a purely mathematical approach fails to consider thedifficulty of the issues, the degree of success obtained, and otherfactors properly considered when determining a fee award under the EAJA.Third, the Secretary contends that the application was not sufficientbecause it failed to distinguish the hours expended on the items onwhich the applicant prevailed and, therefore, included hours spent onitems found ineligible for an award. The Secretary argues that thisinadequacy should preclude an award for those items withdrawn before thehearing.a.We first address the Secretary’s claim that attorney fees for work doneprior to the notice of contest are not recoverable.The Secretary properly notes that the EAJA only allows the recovery offees connected with an adversary adjudication. Under the OccupationalSafety and Health Act of 1970 (OSH Act), she continues, Commissionjurisdiction, and therefore the adversary adjudication, does not beginuntil the employer files its notice of contest. Therefore, she argues,the applicant is entitled to recover only fees and expenses incurredafter the notice of contest was filed. We disagree.The EAJA allows for the recovery of fees \”in connection with\” anadversary adjudication. 5 U.S.C. ? 504(a)(1). Notwithstanding theCommission’s procedural rule requiring the filing of a complaint, thereality is that the citation initiates the Secretary’s action againstthe employer. While it might choose not to contest the matter, theemployer certainly considers itself to be in an adversarial situationupon receipt of the citation. After the citation is received, theemployer can be expected to consult its attorney prior to filing itsnotice of contest. These early expenses are \”in connection with\” theadversary adjudication. If the employer prevails, and a judge determinesthat the Secretary was not substantially justified in issuing all orpart of the citation, the employer should be eligible to recover legalexpenses incurred from the receipt of the citation. Accordingly, we holdthat, for purposes of the EAJA, the adversary adjudication normallybegins with the issuance of the citation.[[4\/]]Central Brass’ application states that 11.25 hours of attorney time wasexpended between receipt of the citation and its filing of the notice ofcontest. Insofar as they can be allocated to compensable citation items,these expenses are recoverable.The application also includes 22.5 attorney hours spent before thecitation was issued. Most of these hours involved issues surrounding theinspection: propriety and scope of inspection and closing conferences.We have found nothing to support a holding that, as a generalproposition, expenses incurred during a consensual inspection are \”inconnection with\” an adversary adjudication. Before the issuance of acitation, the Secretary of Labor takes no official position contrary tothe defensible rights of the applicant. Therefore, it cannot be saidthat the Secretary has taken an \”adversarial position.\” In the usualsituation, only upon issuance of the citation do the Secretary and theemployer assume an adversarial posture.While we hold that, as a general rule, the adversary adjudication beginsupon issuance of the citation, we can envision situations where theadversary adjudication may begin at an earlier stage of the proceedings.If, for example, the employer retains legal counsel to stop an allegedlyillegal inspection and successfully contends before the Commission thatthe inspection was illegal and without substantial justification, theadversary adjudication could be held to have begun with the inspection.In such a situation, legal expenses incurred in challenging theinspection, before the issuance of the citation, could prove to becompensable.b.We next consider the Secretary’s contention that Central Brass should bedenied any award because its application was not sufficiently detailedto allow the Commission to allocate attorney time to specificviolations. The 15 different violations alleged against Central Brasscan be broken into three categories: noise, silica dust, and lead. Ofthese, both of the silica items were vacated and are eligible for a feeaward, three of the nine lead items are eligible, and none of the noiseitems are subject to recovery. The time sheets submitted by theapplicant largely failed to separate the time spent by these categories.It may not have been possible to allocate the time spent on everyactivity spent in defense. Telephone calls, client meetings and othersuch billable hours would have, of necessity, included time spent oneach of the categories. Where possible, however, an effort should havebeen made to indicate the general categories on which the time wasspent. The time sheets detail the general activities to which the hourswere devoted but fail, with minor exceptions, to allocate the hours toany specific category of violation.The Secretary argues that these deficiencies require a denial of anaward. We disagree.When an application does not provide sufficient detail to allow adetermination of those hours specifically spent on the eligible items, atotal denial of an award is generally not appropriate. Such a totaldenial is reserved for the most severe situations, for example, wherethe applicant declines to proffer any substantiation in the form ofaffidavits or timesheets, where the application is grossly orintolerably exaggerated or manifestly filed in bad faith, or where aparty has unreasonably prolonged the litigation. _Zabkowicz v. West BendCo. Div. Dart Industries, _789 F. 2d 540, 550 (7th Cir. 1986); _Actionon Smoking & Health v. C.A.B., _724 F. 2d 211, 220 (D.C. Cir. 1984);_Jordan v. Department of Justice,_ 691 F.2d 514, 518 (D.C. Cir. 1982).We find nothing in the record to support a total denial of fees.We find that the time sheets included in the application meet theminimally acceptable standard for recovery under the EAJA. The sheets,while detailing the type of activity (i.e. telephone calls, meetings,and letter writing) almost totally failed to designate the items orcategory of violation to which those hours were devoted. Fortunately forthe applicant, the particular nature of this case made it possible forus to make a reasonable allocation of hours.However, when an applicant prevails on only some of the claims involvedin an adversary adjudication, it is necessary to determine whether theclaims upon which the applicant prevailed are related to those on whichit lost. When the claims involve a common core of facts or involverelated legal theories, the necessary commingling of effort by lawyersworking on those items makes it difficult, if not impossible, toseparate the labor that went into the various items. _Hensley v.Eckerhart _461 U.S. at 435-6, 103 S.Ct. at 1940-1. In such situations,we must look at the level of the applicant’s overall success indetermining the fee award on those items on which the fee applicantprevailed. _Hensley v. Eckerhart,_ 461 U.S. at 435, 103 S.Ct. at 1940.In many cases, however, especially where the type of violations involvedare more diverse and unrelated, an appropriate allocation may not bepossible without a more detailed breakdown than that submitted here. Insuch an instance, the applicant might well find its award substantiallyreduced as a result of the deficiencies. _Hensley v. Eckerhart,_ 461U.S. at 433, 103 S.Ct. at 1939.Here, while the time sheets submitted generally fail to identify theitems or even the general categories in which time was spent, a certainamount of hours can be allocated to the general categories. For example,34.75 hours are listed in a manner that clearly indicated that they weredevoted to the noise violations. Because these violations are notsubject to an EAJA award, those hours must be excluded fromconsideration. On the other hand, 2.25 hours were specifically allocatedto the silica violations. The judge found both silica items eligible foran EAJA award, and they should be specifically included in anyaward.[[5\/]] According to our calculation, approximately 330 pre-hearingattorney hours, including 11.25 attorney hours spent between receipt ofthe citation and filing of the notice of contest, remain that cannot bespecifically allocated to any of the categories.In arriving at the award appropriate for this portion of theapplication, the judge made a pro rata apportionment based on thepercentage of the items he found eligible for the award. As theSecretary properly argues, an award based on such a pro rataapportionment is not appropriate. _Hensley v. Eckerhart,_ 461 U.S. at435, n.11, 103 S.Ct. at 1940, n.11. Rather, the judge must determine the\”lodestar\” (hourly fee X reasonable hours expended). _Action on Smoking& Health v. C.A.B.,_ 724 F.2d at 221. When determining the \”lodestar\”the judge should consider the complexity and novelty of the issues basedon his own knowledge, experience and expertise of the time required tocomplete similar activities. _See William B. Hopke Co.,_ 12 BNA OSHC2158, 2160, 1986-87 CCH OSHD ? 27,729 at p. 36,257 (Docket No. 81-206,1986).Considering that all of the citation items were of substantially equaldifficulty and accounting for the fraction of the total items eligiblefor an award, we find that one fourth of these unallocated 330 hours, or82.5 hours, are compensable under the EAJA. At the statutory rate of $75per hour, we award $6187.50 for this portion of the application.[[6\/]]In addition, we will allow the 2.25 hours specifically allocated to thesilica items for an additional $168.75.IIIIn response to an item that alleged that Central Brass failed to providepreassignment physicals to employees exposed to airborne concentrationsof lead, the employer took the deposition of a nurse to establish thatthe preassignment physicals were given. Having found that the itemqualified for an EAJA award, the judge included in his awardcompensation for 14 hours of attorney time and $182 in costs associatedwith the deposition. The Secretary raises two arguments in support ofher contention that no award should have been made to reimburse costsassociated with the deposition.a.First, the Secretary contends that the deposition was not necessary tothe preparation of the applicant’s defense. The Secretary argues thatthe information obtained in the deposition could have been obtained, atsignificantly lower expense, by making a request for medical records orby simply asking the nurse for an affidavit. Moreover, the Secretaryargues that even though it was mentioned in his decision, the judge onlysuperficially relied on the deposition.We find no merit in these arguments. The contention that Central Brasscould have successfully defended itself in a less expensive manner is anargument made with the advantage of hindsight. The record establishesboth that the nurse was a first-hand witness to the facts underlyingportions of Central Brass’ defense of the charge and that she was notable to testify at the hearing. While the applicant could havesubpoenaed the relevant medical records, it is possible that the recordswould have left unanswered questions that still would have required thenurse’s testimony. Moreover, there is no evidence that the cost involvedin obtaining, examining and introducing into evidence all of thenecessary medical records would have been substantially less than thatof obtaining the nurse’s deposition.Had Central Brass merely sought to admit an affidavit into evidence, theSecretary would have had grounds to object to its admission intoevidence based on the failure to accord her an opportunity tocross-examine the affiant.[[7\/]]Finally, contrary to the Secretary’s argument, we find that the judgesignificantly relied on the deposition in his decision to vacate theitem. Specifically, the judge relied on the nurse’s deposition inconcluding that the undisputed evidence established that all employeeswere given pre-employment examinations.b.The Secretary also argues that those sections of the EAJA applicable toadministrative proceedings do not allow for the recovery of costsincurred during the taking of a deposition. This argument highlights thedifference between the fee recovery provisions governing judicial andadministrative proceeding. The Secretary notes that 28 U.S.C. ?2412(d)(1)(A), a part of the EAJA applicable to judicial proceedings,provides for the recovery of \”fees and other expenses, in addition toany costs awarded under subsection (a).\” Subsection (a) of 28 U.S.C.?2412 specifies that the costs enumerated under 28 U.S.C. ?1920 arerecoverable when a party prevails against the United States duringjudicial proceedings. Section 1920 allows recovery for the costs of adeposition._Leonard v Argento,_ 699 F.2d 874, 900 (7th Cir. 1983). Thus,the Secretary reasons, the costs of depositions incurred duringsuch_judicial_ proceedings are recoverable, through incorporation byreference, under a specific provision of the EAJA.The Secretary claims that such costs are not recoverable under the EAJAafter _administrative_ proceedings because 5 U.S.C. ? 504(b)(1)(A),which sets forth the fees and costs recoverable, contains no similarprovision. The Secretary points out that, as a matter of statutoryconstruction, when two sections of a statute are almost identical andone includes a provision excluded from the other, it can be presumedthat Congress acted purposely in creating the difference._Russello v.United States,_ 464 U.S. 16, 104 S. Ct. 296 (1983). Therefore, theSecretary concludes that the lack of a provision specifically includingthe costs of depositions incurred during administrative proceedingsindicates that such costs were not intended to be recoverable under theEAJA. The Secretary’s argument is flawed.The purpose of 28 U.S.C. ? 1920 is to set forth the court costs that maybe imposed upon the parties to a suit. Under 28 U.S.C. ? 2412(a), whichpredates the EAJA, these costs may be assessed against the United Stateswhenever a party prevails against it, regardless of whether the positionof the United States was substantially justified.Under the EAJA, however, attorney fees are additionally recoverable onlywhen the position of the United States was not substantially justified.When drafting the EAJA, Congress sought to preserve the existing lawwhich made section 1920 costs assessable against the government whenevera party prevailed against it. H.R. Rep. No. 96-1418, 96th Cong., 2dSess. 17 (1980), reprinted in 1980 U.S. Code Cong. & Ad. News 4996. Thespecific reference to section 2412(a) in 28 U. S. C. ? 2412(d)(1)(A)preserves this distinction. Thus, those expenses listed under section1920 continue to be available to any party prevailing against the UnitedStates. Additionally, under the EAJA, attorney fees and other expensesare available \”in addition to\” those costs set forth under section 1920whenever the position of the United States is found to lack substantialjustification.Outside of the EAJA, there are no statutory provisions similar to eithersection 1920 or section 2412(a) that would allow costs to be assessedagainst the United States after administrative proceedings. Therefore,unlike the situation with the judicially applicable portion of the EAJA,there is no need to distinguish those costs available under the EAJAfrom those available outside of that statute.Accordingly, despite the Secretary’s arguments, the difference in thelanguage between 28 U.S.C. ? 2412(d)(1)(A) and 5 U.S.C. ? 504(b)(1)(A)need not be explained as an intentional attempt to exclude certain costsfrom those recoverable under the administrative portion of the EAJA.Indeed, it is unlikely that Congress had such an intention. In examiningthe scope of recoverable expenses under Title VII (Civil Rights)actions, 42 U.S.C. ? 2000e-5(k), the Seventh Circuit stated that \”[i]fthis fee-shifting statute did not provide for an award of expenses, ‘itwould fall short of its goal’ of encouraging the prosecution of TitleVII claims.\” _Zabkowicz v. West Bend Co., Div. Dart Industries,_ 789F.2d at 553; _see also Henry v. Webermeier,_ 738 F.2d 188, 192 (7th Cir.1984). Applying such logic here, it could be said that if Congressintended the EAJA to exclude the costs of such items as depositions fromthe administrative portion of the EAJA, it would have fallen short ofits goal of encouraging small employers to defend their rights againstunjustified governmental action.C.Based on the time sheets submitted by the applicant, the judgedetermined that Central Brass’s attorneys spent 14 hours in activitiespertaining to the deposition. We find no error in that allocation.Accordingly, based on the hourly rate of $75 per hour, we find that theapplicant is entitled to recover $1050 in attorney fees for this portionof its application.IVIn his decision, Judge Salyers included 36 hours of attorney time tocover time involved litigating and briefing the one item that went tohearing that he found eligible for an award. The Secretary objects tothe award on the grounds that it was made without explanation by thejudge or itemization by the applicant.Our examination of the time sheets reveals that approximately 190 hourswere expended preparing, litigating, and briefing the seven items thatwent to hearing. Considering the difficulty of the recoverable item andthe degree of success it represents, we conclude that the judge’s awardwas not unreasonable and we will not disturb it. Therefore, based on thestatutory rate of $75 per hour, we award $2700 for this aspect of theapplication.Similarly, we find no error in the judge’s award of expenses. Theapplicant claimed a total of $7,918.63 in expenses, including expertwitness fees. The judge awarded a total of $2,000 in expenses, including$182 connected with the nurse’s deposition and $760 in expert witnessfees attributable to the silica charge that went to hearing. We find thejudge’s assessment to be reasonable and we approve that portion of theaward.V.Finally, we note that the application listed 18.85 hours specificallyapplicable to the preparation of the initial EAJA application filedbefore the judge. The judge failed to discuss this aspect of theapplication. However, hours spent preparing an application for attorneyfees under the EAJA are compensable. _See Lee v. Johnson,_ 799 F.2d 31(3d Cir. 1986); _Barriger v. Bowen,_ 673 F.Supp. 1167 (N.D.N.Y., 1987).Therefore, compensation for the 18.85 hours spent preparing this EAJAapplication at the statutory rate of $75 ($1,413.75) will be included inthe award.VIAccordingly, the judge’s decision granting Central Brass an award underthe EAJA is modified. We award Central Brass $11,520 in attorney feesand $2,000 in expenses for a total award of $13,520.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: _November 15, 1990_————————————————————————CENTRAL BRASS MANUFACTURING CO.,Applicant,v.SECRETARY OF LABOR,Respondent.OSHRC Docket Nos.86-0978 and 86-1610(Consolidated)_DECISION AND ORDER_SALYERS, Judge: Central Brass Manufacturing Co. (hereinafter\”applicant\”) was inspected on two occasions by the Secretary of Labor in1986 under the provisions of the Occupational Safety and Health Act (29U.S.C. ? 651, _et_ _seq_.). Following these inspections, the Secretaryissued several citations alleging violations of the Act in casesnumbered 86-0978 and 86-1610. These citations were contested byapplicant and were consolidated for trial. Prior to trial applicantwithdrew its notice of contest with respect to all items in Docket No.86-1610, and these items became final orders of the Review Commission byoperation of law.Case No. 86-978 was heard by the undersigned on March 10 and 11, 1987,in Cleveland, Ohio. At the time of trial the parties announcedsettlement of a number of items which had been resolved throughnegotiations. All items not disposed of by the parties were resolved bya decision rendered on October 16, 1987. Neither party petitioned forreview of this decision nor did the Review Commission call the case forreview on its own volition. Accordingly, the decision in Case No.86-0978 has now become a final order.Applicant seeks to recover its attorney’s fees and costs pursuant to theEqual Access to Justice Act, 5 U.S.C. ? 504 [[1\/]] (hereinafter the\”Act\”); _to_ _wit_, $79,438.50 in attorney’s fees and $7,918.63 inexpert witness fees and expenses. Both parties have filed briefs andaffidavits in support of their respective positions. [[2\/]]To establish eligibility under the Act, a party must show it meetscertain criteria with regard to net worth and number of employees. Inthe case of a corporation, the net worth must not exceed $7,000,000 andthe number of employees cannot exceed 500. This requirement has beensatisfied by affidavits attached to respondent’s petition [[3\/]] and hasnot been challenged by the Secretary. Respondent, because of its sizeand financial circumstances, meets the basic eligibility requirements ofthe Act.The following items were withdrawn or conceded by the parties prior toor at the commencement of trial (Tr. 5-10):_Serious Citation No. 1 _Items 1 (a) and 1(b) alleged violation of 29 C.F.R. ? 1910.95(b)(1) and.95(i)(2)(i) (exposure of employees to noise levels in excess ofpermissible limits and failure to institute administrative orengineering controls)._Disposition _Withdrawn by Secretary after negotiation with applicant on March 4, 1987._\”Other\” Citation No. 2_Items 2(a) and 2(b) alleged violation of 29 C.F.R. ? 1910.1000(c) and.1000(e) (exposure of employees to silica in excess of PEL and failureto protect same through use of administrative or engineering controls)._Disposition _Withdrawn by Secretary after negotiations with applicant on February 23,1987.Item 3(a) alleged violation of 29 C.F.R. ? 1910.1025(d)(6)(ii) (failureto monitor employees exposed to lead above action level)._Disposition _Withdrawn by Secretary at trial.Item 3(b) alleged violation of 29 C.F.R. ? 1910.1025(d)(6)(iii) (failureto monitor employees exposed to lead above PEL)._Disposition_Notice of contest withdrawn by applicant at trial (Tr. 9) becomes finalorder of Review Commission by operation of law.Item 4(b), sub-items (a) through (g) of 29 C.F.R. ? 1910.1025(f)(3)(ii)(failure to perform fit test on various employees exposed to lead atintervals of six months)._Disposition_Secretary concedes at trial sub-items (a), (b) and (d). Applicantconcedes sub-items (c), (e), (f) and (g) (Tr. 9).Item 6 alleged violation of 29 C.F.R. ? 1910.1025(l)(1)(ii) (failure toinstitute training program for employees subject to lead exposure)._Disposition_Withdrawn by Secretary after negotiations with applicant on March 9, 1987.The following items were not resolved by the parties and were disposedof after trial as follows:_Serious Citation No. 1_Item 2(a) alleged violation of 29 C.F.R. ? 1910.1025(g)(1) (failure touse protective work clothing by employee exposed to lead abovepermissible exposure Iimit)._Disposition _Affirmed and $280 penalty imposed.Item 2(b) alleged violation of 29 C.F.R. ? 1910.1025(i)(3)(i) (failureto require employees exposed to lead to shower at end of work shift)._Disposition _Vacated on grounds that the test result of compliance officer was notrepresentative.Item 2(c) alleged violation of 29 C.F.R. ? 1910.1025(i)(4)(i) (failureto provide lunchroom facilities for employees exposed to lead in excessof permissible exposure limits)._Disposition _Affirmed with penalty of $400 assessed._\”Other\” Citation No. 2_Item 1 alleged violation of 29 C.F.R. ? 1910.95(c)(1) (failure toinstitute and maintain a continuing and effective hearing conservationprogram)._Disposition _Affirmed as _de minimis._Item 3 (c) alleged violation of 29 C.F.R. ? 1910.1025(d)(8)(i) (failureto notify employees exposed to lead of monitoring results)._Disposition _Affirmed as _de minimis._Item 4 (a) alleged violation of 29 C.F.R. ? 1910.1025(f)(3)(ii) (failureto perform fit tests for respirators at time of initial fitting ofemployees exposed to lead in excess of PEL)._Disposition_Affirmed.Item 5 alleged violation of 29 C.F.R. ?1910.1025(j)(3)(i)(B) (failure toprovide employees with medical examinations prior to assignment to anarea in which airborne concentrations of lead are at or above the actionlevel)._Disposition_Vacated.The Act speaks in terms of the \”prevailing party.\” In this case eachparty prevailed as to some items and lost as to others. The ReviewCommission has made it clear that a party may recover even if the partyprevailed only is to a \”discrete, substantive portion\” of the case. _H.P. Fowler Contracting Corp.,_ 84 OSAHRC 54\/C12, 11 BNA OSHC 1814,1983-84 CCH OSHD ? 26,830 (No. 30-3699, 1984), including aspects of thecase that were settled by agreement of the parties. _KDK Upset Forging,Inc.,_ 1986-87 CCH OSHD ? 27,612 (No. 81-1932, 1987). The Act specifies,however, that a prevailing party may be denied recovery where the\”position of the agency was substantially justified.\” The term\”substantially justified\” is explained in the Act’s legislative historyas follows:The test of whether or not a Government action is substantiallyjustified is essentially one of reasonableness. Where the Government canshow that its case had a reasonable basis both in law and fact, no awardwill be made.The standard, however, should not be read to raise a presumption thatthe Government position was not substantially justified, simply becauseit lost the case. Nor, in fact, does the standard require the Governmentto establish that its decision to litigate was based on a substantialprobability of prevailing. S. Rep. No. 96-253, 96th Cong., 1st Sess. 6-7(1979)The House Judiciary Committee report also includes the followingelaboration:The standard and burden of proof adopted in [EAJA] represents anacceptable middle ground between an automatic award of fees and therestrictive standard proposed by the Department of Justice [that wouldpermit fees to be awarded only where the government action wasarbitrary, frivolous, unreasonable, or groundless]. It presses theagency to address the problem of abusive and harassing regulatorypractices. It is intended to caution agencies to carefully evaluatetheir case and not to pursue those which are weak or tenuous. At thesame time, the language of the section protects the government when itscase, though not prevailing, has a reasonable basis in law and fact. H.R. Rep. No. 96-1418, 96th Cong., 2d Sess. at 13014The legislative history of the Act, as originally adopted, indicatesthat Congress did not intend an automatic award of fees in everyinstance where the government loses a case. The Act was intended todeter the government from instituting legal proceedings which were notsound in law and fact and to compensate defendants for expenses incurredin litigating such unjustified government actions. It was not intended,however, to deter the government from bringing legitimate enforcementactions even if the possibility exists that some or all of the case maybe lost due to the vicissitudes of litigation.In 1985 amendments to the Act were made by the 99th Congress to extendand improve the Act as originally adopted. One of the principal areaswhich Congress deemed the courts were overlooking in implementing theAct related to narrow construction of the clause, \”position of theagency.\” In adopting the amendments, Congress added the clause,\”substantially justified on the basis of the administrative record, as awhole,\” and mandated that this clause be construed to encompass allagency action leading to litigation and not solely to the Government’sposition after litigation was instituted. Congress also mandated thatthe term \”substantially justified\” required a construction of more than\”mere reasonableness.\” See House Judiciary Report 99-120, page 9, datedMay 15, 1985, and directed the term must \”be decided on a case by casebasis due to the wide variety of factual contexts and legal issues whichmake up government disputes.\” _Id._ at pg 10. While Congress did make itclear that the Secretary’s position must be examined, the 85 amendmentsdid not significantly alter the test for \”substantially justified\”. Thetest remains one of \”reasonableness\”. Where it appears the Secretary’sposition has a sound foundation in both law and fact, no award should bemade.In keeping with the foregoing, the Secretary’s position in this caseboth before and during litigation will be scrutinized to determine if itwas \”substantially justified\”; _i.e._, was reasonably based on law andfact. The case will be viewed in terms of those items that werewithdrawn by the Secretary and those items which were resolved throughthe litigation process._Items Withdrawn by the Secretary_Prior to trial the parties engaged in extensive settlement discussionsand negotiations in an effort to resolve all items upon which agreementscould be reached. As a result of these efforts, the Secretary agreed towithdraw items 1(a) and 1(b) of serious Citation No. 1 which deals withalleged infractions of 29 C.F.R. ? 1910.95, the standard dealing withoccupational noise exposure.The Secretary has submitted an affidavit of Rachael Fish, the complianceofficer who conducted the inspection in this case, which sets forth theprocedures followed in her inspection. This affidavit (Ex. J-53)reflects the sampling techniques employed by Fish were in accordancewith accepted standards utilized in conducting such investigations andthat the results of her testing indicated one molder, one shakeoutoperator, and one lathe operator were exposed to sound levels in excessof permissible limits set forth in the standard. The affidavit ofChristopher J. Carney, the attorney representing the Secretary, reflectsthat during settlement discussions between the parties conducted shortlybefore trial, the attorney for applicant submitted documentation notpreviously disclosed to the Secretary which tended to supportapplicant’s argument that the noise overexposure reported by ComplianceOfficer Fish may have resulted from the failure of the involvedemployees to follow applicant’s work rules and might, therefore, supporta defense of \”isolated incidence of employee misconduct\” (Ex. J-53).Based upon this new evidence, and in the interest of compromise andsettlement, counsel for the Secretary agreed to dispose of seriousCitation No. 1, items (a) and (b), short of litigation.The actions of the Secretary with respect to serious Citation No. 1,items (a) and (b), at all stages of the proceeding were \”substantiallyjustified\”. The affidavit of Fish supports a conclusion that the chargesrelating to overexposure to noise were based upon a careful inspectionof applicant’s operations by a professional industrial hygienist whoconducted her inspection in accordance with recognized and acceptedprocedures and concluded that the noise standard had been breached. Theaction of the Secretary in bringing the charges was based upon the factscollected by Fish and was, therefore, fully Justified. The action ofSecretary’s counsel in disposing of these items after new evidence waspresented was an appropriate and reasonable response and does notundermine the facts which formed the basis for instituting the charges.Applicant is not entitled to an award with regard to serious CitationNo. 1, items (a) and (b).The withdrawal of \”other\” Citation No. 2, items 2(a) and 2(b),concerning exposure of employees silica and items 3(a) and 6 concerningexposure of employees to lead presents a somewhat different situation.The affidavit of Fish recites that she conducted monitoring anddetermined that one sandblaster was overexposed to silica. She furtheraffies that interviews of employees disclosed there \”inadequate trainingas to the hazards associated with lead contamination.\” While thesesketchy facts might serve as a basis upon which to conclude that theSecretary was justified in bringing these charges, they are underminedby the failure of Carney’s affidavit to deal directly with the reasonswhy the Secretary withdrew these items. Carney’s affidavit is notinformative with respect to the reasons for the Secretary’s withdrawalof these items except to recite the decision was made \”after it wasdetermined it would be unlikely for the Secretary to prevail at hearing\”and that decision \”was not based on the conclusion the Secretary was notsubstantially justified in issuing these citations.\” Such generalizedstatements without further amplification suggest the underlying basis ofthe Secretary’s charges may have been weak or tenuous. The Act and theReview Commission’s regulations place the burden of persuasion on theSecretary to show why an award should not be made to a prevailing party.In this instance, the Secretary’s failure to deal directly with thereasons for withdrawal has created a presumption that the underlyingbasis for the charges may not have been justified. Under thesecircumstances, applicant is entitled to an award for items 2(a), 2(b),3(a) and 6.Item 4(b) alleging a failure to perform fit tests at six-month intervalson various employees exposed to lead resulted in concession by bothparties. The Secretary conceded three sub-items, and applicant concededfour. It is concluded that neither party prevailed as to this item, andno award will be made._Items Resolved by the Litigation Process_As a result of litigation, the Secretary prevailed on two out of threeserious items and three out of four items classified as \”other\” thanserious. [[4\/]]Item 2(b) of serious Citation No. 1 charged a failure by the applicantto assure that employees exposed to lead above the permissible exposurelimit took showers at the end of each work shift. This item was based ona determination by the Secretary’s hygienist that one employee inapplicant’s polishing department (Ruben Spurlock) who was overexposed tolead did not shower at the end of his work shift. The fact that Spurlockwas overexposed to lead was conceded by the applicant and wascorroborated by applicant’s own independent consultant. At the hearing,however, applicant introduced two exhibits in support of its claim thatSpurlock’s Sample was atypical. These exhibits tended to show that thetest results obtained with respect to Spurlock were not representativeof the polishing department as a whole and the item was vacated on thisbasis. This result does not establish that the Secretary’s position hadno basis in fact or law or that the Secretary’s position was not\”substantially justified.\” What it does reflect is a posthearingassessment by the court after all the evidence was received that theSecretary’s evidence did not preponderate over that produced byapplicant at trial. Such a result does not merit an award.Item 5 of \”other\” Citation No. 2 charged applicant with a failure toprovide medical examinations to employees assigned to an area in whichthey were exposed to lead at or above the action level. The evidence attrial established that all employees hired during the four and a halfyears preceding the hearing had received the required medicalexaminations. At hearing the Secretary contended that employees hiredearlier than four and a half years were not given the requiredexaminations but produced no testimony or other evidence to support thisclaim. [[5\/]] It further appears the Secretary’s agents could haveascertained the pertinent facts during the investigation stage of theproceeding with the exercise of diligence. In this instance, the courtfound the Secretary did not make a _prima_ _facie _case and it clearlyappears that the Secretary’s position was without substantialjustification Accordingly, applicant is entitled to fees and expenses asto item 5._Determination of Award_Applicant is not entitled to recover fees and expenses with respect toany of the serious items contained in Citation No. 1. These were thesignificant items of the case and contained the most important issues tobe decided. Recovery is limited to the charges contained in \”other\”Citation No. 2, items 2(a), 2(b), 3(a) and 6, which charges werewithdrawn by the Secretary prior to trial and to item 5, which waslitigated and lost by the Secretary for failure to make out a _prima__facie_ case. It is readily apparent that the total fees and expensessought by applicant must be substantially reduced to reflect areasonable amount which comports with those items upon which applicantis entitled to recover.The affidavit of Mark V. Webber sets forth the attorney hours expendedon a daily basis but does not allocate these hours on an item by itembasis. It is impossible to allocate costs as to each item with anydegree of precision. Accordingly, it is necessary to arrive at somebasis upon which reasonable allocation can be made.With regard to those items withdrawn by the Secretary prior to trial forwhich \”substantial justification\” was not established (\”other\” CitationNo. 2, items 2(a), 2(b), 3(a) and 6), recovery will be limited to a prorata share of the hours expended by applicant up to the time of theSecretary’s withdrawal. Webber’s affidavit reflects approximately 400hours were devoted to the case up to the point of withdrawal. A total of15 items were included in the citations (5 serious and 10 \”other\”).Applicant is eligible to recover on four of these items or, roughly, 25percent of the total. Accordingly, applicant is entitled to a pro ratashare of 100 hours computed at an hourly rate of $75.00, the maximumamount allowed by the statute, for a total of $7,500.00.Applicant is entitled to recover with respect to only one item (\”other\”Citation No. 2, item 5) of the seven litigated by the parties. While asimilar method to that employed above has been considered for this item,it is possible to isolate to some extent the hours expended by applicantin defending against this charge. Webber’s affidavit reflects theexpenditure of 14 hours directly attributable to taking the depositionof nurse Selvaggio (See Webber’s affidavit for entries made on February26 and 27, 1987, and March 4, 9, 13 and 25, 1987). An additional 36hours will be allowed to cover the time involved in litigating andbriefing this item for a total of 50 hours. An award of $3,750.00 willbe made to cover attorney’s fees for Citation No. 2, item 5.In addition to attorney’s fees, applicant has incurred expenses whichcan be attributed to the allowed items. The affidavit of Webber reflectscosts of $182.00 in connection with the deposition of nurse Selvaggioarid $760.00 in expert fees attributable to the silica charge. Applicantwill be allowed a total of $2,000.00 to cover the foregoing items andother attendant administrative costs and expenses._ORDER_It is hereby ORDERED:Applicant is awarded a total of $13,250.00 to cover fees and expensesincurred in connection with Citation No. 2, items 2(a), 2(b), 3(a), 5 and 6.EDWIN G. SALYERSJudgeDate: July 20, 1988FOOTNOTES:[[1\/]] These citations pertain to Docket No. 86-978. Before the judge,No. 86-978 was consolidated with another docket number, 86-1610,involving unrelated citations. Central Brass withdrew its notice ofcontest in No. 86-1610, and the company’s EAJA application does notinvolve that case. Nevertheless, the parties and the judge havecontinued to use both docket numbers to identify the EAJA case.[[2\/]] The judge allowed 100 hours at the statutory rate of $75 per hour.[[3\/]] Although 5 U.S.C. ?504(c)(2) originally required that judicialreview of agency awards use the \”abuse of discretion\” standard, thatsection was amended in 1985 to both preclude the United States fromseeking judicial review of an agency award and to impose the\”substantial evidence\” test as the standard of review on those appealstaken by fee applicants.[[4\/]] The Secretary calls our attention to _White v. United States_,740 F.2d 836 (11th Cir. 1984). In that case the court observed that theEAJA allows for recovery of fees incurred \”during\” adversaryadjudications. However, the court did not limit recovery to those costsincurred \”during\” the adversary adjudication. Rather, it held that thefirst of any recoverable fees are the costs of preparing and filing thepetition or complaint that commences the civil action. Therefore, evenif we held that the adversary adjudication begins with the filing of thenotice of contest, under _White_, the costs associated with thepreparation and filing of the notice of contest would be recoverable.[[5\/]] We also note that 14 hours were allocated to the disputeddeposition. The award status of these hours will be discussed _infra_.[[6\/]] We note that, like the judge, we find one fourth of theunallocatable hours to be compensable. However, our award is based onour determination of the relative difficulty and complexity of theitems, and the degree of success obtained, not on a pro rataapportionment of the fees. While the facts of this case result in anaward equivalent to a pro rating of the total hours expended, in othersituations we may find awards significantly above or below a pro rataapportionment to be appropriate.[[7\/]] In this regard, it should be noted that Commission Rule 69, 29C.F.R. ? 2200.69, expressly gives opposing parties the right tocross-examine any witness whose testimony is introduced by an adverse party.[[1\/]] The Act provides:An agency that conducts an adversary adjudication shall award, to aprevailing party other than the United States, fees and other expensesincurred by that party in connection with that proceeding, unless theadjudicative officer of the agency finds that the position of the agencywas substantially justified or that special circumstances make an awardunjust. Whether or not the position of the agency was substantiallyjustified shall be determined on the basis of the administrative record,as a whole, which is made in the adversary adjudication for which feesand other expenses are sought.[[2\/]] Applicant opposes the filing of the Secretary’s affidavits ongrounds that these affidavits were untimely filed. After dueconsideration, applicant’s motion is denied. All briefs, reply briefs,and affidavits are received and have been considered in conjunction withmy deliberations.[[3\/]] Applicant has filed a motion to withhold disclosure of thefinancial information contained in the affidavit of Richard A. Chandler.This motion has been granted by separate order of the undersigned, andthe record has been sealed with respect to this document (Ex. J-56).[[4\/]] Two of the \”other\” items (one involved a failure to notifyemployees of monitoring results and the other a failure to provideyearly audiograms and training concerning hearing protection) weredowngraded to \”_de minimis_\” but were affirmed. This change incharacterization does not diminish the fact that the Secretary hadjustification for litigating her position but only that the violationswere considered by the court to be technical in nature rather thanhaving a direct bearing on safety and health.[[5\/]] It is noted that applicant found it necessary to take thedeposition of Judy Selvaggio, the nurse who administered theexaminations, to defend against this charge.”