“Docket No. 86-0978_86-1610 SECRETARY OF LABOR,Complainant,v.CENTRAL BRASS MANUFACTURINGCo.,Respondent.OSHRC Docket Nos. 86-0978 &86-1610DECISION AND ORDERBEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:At issue in this case is whether Administrative Law Judge EdwinG. Salyers erred in his award of attorney fees and expenses to Respondent, Central BrassManufacturing Co. (\”Central Brass\”). We find that the judge erred in certainaspects of his methodology and we adjust the award accordingly.On June 25, 1986, the Secretary of Labor issued two citationsto Central Brass.[[1\/]] These citations alleged various violations of the noise, lead andsilica dust standards. Several items were withdrawn by the Secretary before the hearing.Others were either withdrawn at the hearing by the Secretary, disposed of after trial, orconceded by Central Brass. After the judge’s decision became final, Central Brass appliedfor attorney fees under the Equal Access to Justice Act, (\”the EAJA\”), 5 U.S.C.? 504. The company sought a total of $79,438.50 in attorney fees and $7,918.63 in expertwitness fees and expenses. On several items where the applicant prevailed, Judge Salyersdetermined that the Secretary’s position was substantially justified and denied recovery.On five items, however, the judge determined that the Secretary’s position was notsubstantially justified and that recovery under 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 For those items withdrawn by the Secretary before thehearing, the judge awarded Respondent $7500 in attorney fees [[2\/]] after pro rating thetotal hours claimed, for the period of time before the withdrawal, by the percentage ofitems eligible for an award. For the item that went to hearing, the judge awarded $3750 inattorney fees. This included 36 hours for time spent in connection with the hearing and 14hours allocated to time spent obtaining a deposition. The judge also awarded a total of$2000 to cover the applicant’s expenses for the various items.The Secretary filed a petition for review with the Commissionobjecting to the award. The case was directed for review by former Chairman E. RossBuckley. The primary issues on review before the Commission are whether the judge erred inthe following respects: (1) by pro rating the applicant’s total attorney fees and expensesfor the items withdrawn before the hearing on the assumption and without specific evidencethat the amount of time spent on each citation item was the same; (2) by awarding fees fortime spent obtaining a deposition; and (3) by including in the award fees and expensesincurred before the citations were issued. Neither party disputes the judge’sdetermination of which citation items were eligible for an award under the EAJA.I At the outset, Central Brass contends that, in reviewing anEAJA award made by an administrative law judge, the Commission must affirm the judgeunless it finds that the judge abused his discretion. In support of its position, theapplicant points out that the \”abuse of discretion\” standard is used byappellate courts when reviewing attorney’s fee awards made in the district courts. Hensleyv. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941 (1983). We disagree.The portion of the EAJA that entitles parties to recover costsand fees from the federal government after judicial proceedings is codified at 28 U.S.C.? 2412. In Pierce v. Underwood, 437 U.S. 552, 108 S.Ct. 2541 (1988), the SupremeCourt held that appellate review of EAJA awards made in the district courts, under 28U.S.C. ? 2412, are to be conducted under the \”abuse of discretion\” standard. Inreaching this conclusion, the Court noted that administrative proceedings under the EAJAare governed by 5 U.S.C. ? 504 and that, under 5 U.S.C. ? 504(c)(2), appellate courtsmust use the \”substantial evidence\” test as their standard of review of EAJAawards made by administrative agencies.[[3\/]]However, the Review Commission is an administrative agency, notan appellate court. There is nothing in the EAJA to indicate any standard of review forinternal agency review of EAJA awards made by the agency’s administrative law judges.Absent authority to the contrary, the Administrative Procedure Act (\”APA\”) in 5U.S.C. ? 557(b), which normally governs our proceedings, sets forth our standard ofreview of EAJA applications decided by Commission judges. The APA permits de novo review.Accordingly, we reject the applicant’s contention that we must apply an \”abuse ofdiscretion standard,\” and hold that judges’ awards under the EAJA are to be reviewedby the Commission de novo.II In its application, Central Brass’ attorneys claimed to havespent approximately 400 hours on the case before the Secretary withdrew four of the itemsfor which the judge granted an award under the EAJA. The judge noted that these four itemsrepresented approximately one quarter of the items contained in the citations. After prorating the 400 hours spent up until that point, he determined that the applicant wasentitled to be compensated for 100 hours of attorney fees at the statutory rate of $75 perhour, for a total of $7500 for that portion of the application.The Secretary makes three arguments in support of hercontention that this portion of the award was improper. First, she contends that the judgeerred by including attorney fees incurred before the notice of contest was filed, andtherefore, before the \”adversary adjudication\” began. Second, the Secretaryargues that the judge erred by pro rating the total hours by the percentage of itemseligible for an award. She claims that such a purely mathematical approach fails toconsider the difficulty of the issues, the degree of success obtained, and other factorsproperly considered when determining a fee award under the EAJA. Third, the Secretarycontends that the application was not sufficient because it failed to distinguish thehours expended on the items on which the applicant prevailed and, therefore, includedhours spent on items found ineligible for an award. The Secretary argues that thisinadequacy should preclude an award for those items withdrawn before the hearing.a. We first address the Secretary’s claim that attorney fees forwork done prior to the notice of contest are not recoverable.The Secretary properly notes that the EAJA only allows therecovery of fees connected with an adversary adjudication. Under the Occupational Safetyand Health Act of 1970 (OSH Act), she continues, Commission jurisdiction, and thereforethe adversary adjudication, does not begin until the employer files its notice of contest.Therefore, she argues, the applicant is entitled to recover only fees and expensesincurred after the notice of contest was filed. We disagree.The EAJA allows for the recovery of fees \”in connectionwith\” an adversary adjudication. 5 U.S.C. ? 504(a)(1). Notwithstanding theCommission’s procedural rule requiring the filing of a complaint, the reality is that thecitation initiates the Secretary’s action against the employer. While it might choose notto contest the matter, the employer certainly considers itself to be in an adversarialsituation upon receipt of the citation. After the citation is received, the employer canbe expected to consult its attorney prior to filing its notice of contest. These earlyexpenses are \”in connection with\” the adversary adjudication. If the employerprevails, and a judge determines that the Secretary was not substantially justified inissuing all or part of the citation, the employer should be eligible to recover legalexpenses incurred from the receipt of the citation. Accordingly, we hold that, forpurposes of the EAJA, the adversary adjudication normally begins with the issuance of thecitation.[[4\/]]Central Brass’ application states that 11.25 hours of attorney time was expended betweenreceipt of the citation and its filing of the notice of contest. Insofar as they can beallocated to compensable citation items, these expenses are recoverable.The application also includes 22.5 attorney hours spent beforethe citation was issued. Most of these hours involved issues surrounding the inspection:propriety and scope of inspection and closing conferences. We have found nothing tosupport a holding that, as a general proposition, expenses incurred during a consensualinspection are \”in connection with\” an adversary adjudication. Before theissuance of a citation, the Secretary of Labor takes no official position contrary to thedefensible rights of the applicant. Therefore, it cannot be said that the Secretary hastaken an \”adversarial position.\” In the usual situation, only upon issuance ofthe citation do the Secretary and the employer assume an adversarial posture.While we hold that, as a general rule, the adversaryadjudication begins upon 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 allegedly illegal inspection andsuccessfully contends before the Commission that the inspection was illegal and withoutsubstantial justification, the adversary adjudication could be held to have begun with theinspection. In such a situation, legal expenses incurred in challenging the inspection,before the issuance of the citation, could prove to be compensable.b.We next consider the Secretary’s contention that Central Brassshould be denied any award because its application was not sufficiently detailed to allowthe Commission to allocate attorney time to specific violations. The 15 differentviolations alleged against Central Brass can be broken into three categories: noise,silica dust, and lead. Of these, both of the silica items were vacated and are eligiblefor a fee award, three of the nine lead items are eligible, and none of the noise itemsare subject to recovery. The time sheets submitted by the applicant largely failed toseparate the time spent by these categories. It may not have been possible to allocate thetime spent on every activity spent in defense. Telephone calls, client meetings and othersuch billable hours would have, of necessity, included time spent on each of thecategories. Where possible, however, an effort should have been made to indicate thegeneral categories on which the time was spent. The time sheets detail the generalactivities to which the hours were devoted but fail, with minor exceptions, to allocatethe hours to any specific category of violation.The Secretary argues that these deficiencies require a denialof an award. We disagree.When an application does not provide sufficient detail to allowa determination of those hours specifically spent on the eligible items, a total denial ofan award is generally not appropriate. Such a total denial is reserved for the most severesituations, for example, where the applicant declines to proffer any substantiation in theform of affidavits or timesheets, where the application is grossly or intolerablyexaggerated or manifestly filed in bad faith, or where a party has unreasonably prolongedthe litigation. Zabkowicz v. West Bend Co. Div. Dart Industries, 789 F. 2d 540, 550(7th Cir. 1986); Action on 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 meetthe minimally acceptable standard for recovery under the EAJA. The sheets, while detailingthe type of activity (i.e. telephone calls, meetings, and letter writing) almost totallyfailed to designate the items or category of violation to which those hours were devoted.Fortunately for the applicant, the particular nature of this case made it possible for usto make a reasonable allocation of hours.However, when an applicant prevails on only some of the claimsinvolved in an adversary adjudication, it is necessary to determine whether the claimsupon which the applicant prevailed are related to those on which it lost. When the claimsinvolve a common core of facts or involve related legal theories, the necessarycommingling of effort by lawyers working on those items makes it difficult, if notimpossible, to separate 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 atthe level of the applicant’s overall success in determining the fee award on those itemson which the fee applicant prevailed. Hensley v. Eckerhart, 461 U.S. at 435, 103S.Ct. at 1940. In many cases, however, especially where the type of violations involvedare more diverse and unrelated, an appropriate allocation may not be possible without amore detailed breakdown than that submitted here. In such an instance, the applicant mightwell find its award substantially reduced as a result of the deficiencies. Hensley v.Eckerhart, 461 U.S. at 433, 103 S.Ct. at 1939.Here, while the time sheets submitted generally fail toidentify the items 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 arelisted in a manner that clearly indicated that they were devoted to the noise violations.Because these violations are not subject to an EAJA award, those hours must be excludedfrom consideration. On the other hand, 2.25 hours were specifically allocated to thesilica violations. The judge found both silica items eligible for an EAJA award, and theyshould be specifically included in any award.[[5\/]] According to our calculation,approximately 330 pre-hearing attorney hours, including 11.25 attorney hours spent betweenreceipt of the 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 the application, the judge made apro rata apportionment based on the percentage of the items he found eligible for theaward. As the Secretary properly argues, an award based on such a pro rata apportionmentis not appropriate. Hensley v. Eckerhart, 461 U.S. at 435, n.11, 103 S.Ct. at 1940,n.11. Rather, the judge must determine the \”lodestar\” (hourly fee X reasonablehours expended). Action on Smoking & Health v. C.A.B., 724 F.2d at 221. Whendetermining the \”lodestar\” the judge should consider the complexity and noveltyof the issues based on his own knowledge, experience and expertise of the time required tocomplete similar activities. See William B. Hopke Co., 12 BNA OSHC 2158, 2160,1986-87 CCH OSHD ? 27,729 at p. 36,257 (Docket No. 81-206, 1986).Considering that all of the citation items were ofsubstantially equal difficulty and accounting for the fraction of the total items eligiblefor an award, we find that one fourth of these unallocated 330 hours, or 82.5 hours, arecompensable under the EAJA. At the statutory rate of $75 per hour, we award $6187.50 forthis portion of the application.[[6\/]] In addition, we will allow the 2.25 hoursspecifically allocated to the silica items for an additional $168.75.III In response to an item that alleged that Central Brass failedto provide preassignment physicals to employees exposed to airborne concentrations oflead, the employer took the deposition of a nurse to establish that the preassignmentphysicals were given. Having found that the item qualified for an EAJA award, the judgeincluded in his award compensation for 14 hours of attorney time and $182 in costsassociated with the deposition. The Secretary raises two arguments in support of hercontention that no award should have been made to reimburse costs associated with thedeposition.a.First, the Secretary contends that the deposition was notnecessary to the preparation of the applicant’s defense. The Secretary argues that theinformation obtained in the deposition could have been obtained, at significantly lowerexpense, by making a request for medical records or by simply asking the nurse for anaffidavit. Moreover, the Secretary argues that even though it was mentioned in hisdecision, the judge only superficially relied on the deposition.We find no merit in these arguments. The contention thatCentral Brass could have successfully defended itself in a less expensive manner is anargument made with the advantage of hindsight. The record establishes both that the nursewas a first-hand witness to the facts underlying portions of Central Brass’ defense of thecharge and that she was not able to testify at the hearing. While the applicant could havesubpoenaed the relevant medical records, it is possible that the records would have leftunanswered questions that still would have required the nurse’s testimony. Moreover, thereis no evidence that the cost involved in obtaining, examining and introducing intoevidence all of the necessary medical records would have been substantially less than thatof obtaining the nurse’s deposition.Had Central Brass merely sought to admit an affidavit intoevidence, the Secretary would have had grounds to object to its admission into evidencebased on the failure to accord her an opportunity to cross-examine the affiant.[[7\/]]Finally, contrary to the Secretary’s argument, we find that thejudge significantly relied on the deposition in his decision to vacate the item.Specifically, the judge relied on the nurse’s deposition in concluding that the undisputedevidence established that all employees were given pre-employment examinations.b.The Secretary also argues that those sections of the EAJAapplicable to administrative proceedings do not allow for the recovery of costs incurredduring the taking of a deposition. This argument highlights the difference between the feerecovery provisions governing judicial and administrative proceeding. The Secretary notesthat 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 to any costsawarded under subsection (a).\” Subsection (a) of 28 U.S.C. ?2412 specifies that thecosts enumerated under 28 U.S.C. ?1920 are recoverable when a party prevails against theUnited States during judicial proceedings. Section 1920 allows recovery for the costs of adeposition. Leonard v Argento, 699 F.2d 874, 900 (7th Cir. 1983). Thus, theSecretary reasons, the costs of depositions incurred during such judicialproceedings are recoverable, through incorporation by reference, under a specificprovision of the EAJA.The Secretary claims that such costs are not recoverable underthe EAJA after administrative proceedings because 5 U.S.C. ? 504(b)(1)(A), whichsets forth the fees and costs recoverable, contains no similar provision. The Secretarypoints out that, as a matter of statutory construction, when two sections of a statute arealmost identical and one 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, the Secretary concludes that the lack of aprovision specifically including the costs of depositions incurred during administrativeproceedings indicates that such costs were not intended to be recoverable under the EAJA.The Secretary’s argument is flawed.The purpose of 28 U.S.C. ? 1920 is to set forth the courtcosts that may be 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 States whenever a partyprevails against it, regardless of whether the position of the United States wassubstantially justified.Under the EAJA, however, attorney fees are additionallyrecoverable only when the position of the United States was not substantially justified.When drafting the EAJA, Congress sought to preserve the existing law which made section1920 costs assessable against the government whenever a party prevailed against it. H.R.Rep. No. 96-1418, 96th Cong., 2d Sess. 17 (1980), reprinted in 1980 U.S. Code Cong. &Ad. News 4996. The specific reference to section 2412(a) in 28 U. S. C. ? 2412(d)(1)(A)preserves this distinction. Thus, those expenses listed under section 1920 continue to beavailable to any party prevailing against the United States. Additionally, under the EAJA,attorney fees and other expenses are available \”in addition to\” those costs setforth under section 1920 whenever the position of the United States is found to lacksubstantial justification.Outside of the EAJA, there are no statutory provisions similarto either section 1920 or section 2412(a) that would allow costs to be assessed againstthe United States after administrative proceedings. Therefore, unlike the situation withthe judicially applicable portion of the EAJA, there is no need to distinguish those costsavailable under the EAJA from those available outside of that statute.Accordingly, despite the Secretary’s arguments, the differencein the language between 28 U.S.C. ? 2412(d)(1)(A) and 5 U.S.C. ? 504(b)(1)(A) need notbe explained as an intentional attempt to exclude certain costs from those recoverableunder the administrative portion of the EAJA. Indeed, it is unlikely that Congress hadsuch an intention. In examining the scope of recoverable expenses under Title VII (CivilRights) actions, 42 U.S.C. ? 2000e-5(k), the Seventh Circuit stated that \”[i]f thisfee-shifting statute did not provide for an award of expenses, ‘it would fall short of itsgoal’ of encouraging the prosecution of Title VII claims.\” Zabkowicz v. West BendCo., Div. Dart Industries, 789 F.2d at 553; see also Henry v. Webermeier, 738F.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 from theadministrative portion of the EAJA, it would have fallen short of its goal of encouragingsmall employers to defend their rights against unjustified governmental action.C.Based on the time sheets submitted by the applicant, the judgedetermined that Central Brass’s attorneys spent 14 hours in activities pertaining to thedeposition. We find no error in that allocation. Accordingly, based on the hourly rate of$75 per hour, we find that the applicant is entitled to recover $1050 in attorney fees forthis portion of its application.IV In his decision, Judge Salyers included 36 hours of attorneytime to cover time involved litigating and briefing the one item that went to hearing thathe found eligible for an award. The Secretary objects to the award on the grounds that itwas made without explanation by the judge or itemization by the applicant.Our examination of the time sheets reveals that approximately190 hours were expended preparing, litigating, and briefing the seven items that went tohearing. Considering the difficulty of the recoverable item and the degree of success itrepresents, we conclude that the judge’s award was not unreasonable and we will notdisturb it. Therefore, based on the statutory rate of $75 per hour, we award $2700 forthis aspect of the application.Similarly, we find no error in the judge’s award of expenses.The applicant claimed a total of $7,918.63 in expenses, including expert witness fees. Thejudge awarded a total of $2,000 in expenses, including $182 connected with the nurse’sdeposition and $760 in expert witness fees attributable to the silica charge that went tohearing. We find the judge’s assessment to be reasonable and we approve that portion ofthe award.V.Finally, we note that the application listed 18.85 hoursspecifically applicable to the preparation of the initial EAJA application filed beforethe judge. The judge failed to discuss this aspect of the application. However, hoursspent preparing an application for attorney fees under the EAJA are compensable. SeeLee 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 in the award.VIAccordingly, the judge’s decision granting Central Brass anaward under the EAJA is modified. We award Central Brass $11,520 in attorney fees and$2,000 in expenses for a total award of $13,520.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: November 15, 1990CENTRAL BRASS MANUFACTURING CO.,Applicant,v.SECRETARY OF LABOR,Respondent.OSHRC Docket Nos.86-0978 and 86-1610(Consolidated)DECISION AND ORDERSALYERS, Judge: Central Brass Manufacturing Co. (hereinafter\”applicant\”) was inspected on two occasions by the Secretary of Labor in 1986under the provisions of the Occupational Safety and Health Act (29 U.S.C. ? 651, etseq.). Following these inspections, the Secretary issued several citations allegingviolations of the Act in cases numbered 86-0978 and 86-1610. These citations werecontested by applicant and were consolidated for trial. Prior to trial applicant withdrewits notice of contest with respect to all items in Docket No. 86-1610, and these itemsbecame final orders of the Review Commission by operation of law.Case No. 86-978 was heard by the undersigned on March 10 and11, 1987, in Cleveland, Ohio. At the time of trial the parties announced settlement of anumber of items which had been resolved through negotiations. All items not disposed of bythe parties were resolved by a decision rendered on October 16, 1987. Neither partypetitioned for review 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 afinal order.Applicant seeks to recover its attorney’s fees and costspursuant to the Equal 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 and affidavits in supportof their respective positions. [[2\/]]To establish eligibility under the Act, a party must show it meets certain criteria withregard to net worth and number of employees. In the case of a corporation, the net worthmust not exceed $7,000,000 and the number of employees cannot exceed 500. This requirementhas been satisfied by affidavits attached to respondent’s petition [[3\/]] and has not beenchallenged by the Secretary. Respondent, because of its size and financial circumstances,meets the basic eligibility requirements of the Act.The following items were withdrawn or conceded by the partiesprior to or 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 or engineering controls).Disposition Withdrawn by Secretary after negotiation with applicant onMarch 4, 1987.\”Other\” Citation No. 2Items 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 failure toprotect same through use of administrative or engineering controls).Disposition Withdrawn by Secretary after negotiations with applicant onFebruary 23, 1987.Item 3(a) alleged violation of 29 C.F.R. ? 1910.1025(d)(6)(ii)(failure to 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) (failure to monitor employees exposed to lead above PEL).DispositionNotice of contest withdrawn by applicant at trial (Tr. 9)becomes final order 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). DispositionSecretary concedes at trial sub-items (a), (b) and (d).Applicant concedes sub-items (c), (e), (f) and (g) (Tr. 9).Item 6 alleged violation of 29 C.F.R. ? 1910.1025(l)(1)(ii) (failure to institutetraining program for employees subject to lead exposure).DispositionWithdrawn by Secretary after negotiations with applicant onMarch 9, 1987.The following items were not resolved by the parties and weredisposed of after trial as follows:Serious Citation No. 1Item 2(a) alleged violation of 29 C.F.R. ? 1910.1025(g)(1)(failure to use protective work clothing by employee exposed to lead above permissibleexposure Iimit).Disposition Affirmed and $280 penalty imposed.Item 2(b) alleged violation of 29 C.F.R. ? 1910.1025(i)(3)(i)(failure to require employees exposed to lead to shower at end of work shift).Disposition Vacated on grounds that the test result of compliance officerwas not representative.Item 2(c) alleged violation of 29 C.F.R. ? 1910.1025(i)(4)(i)(failure to provide lunchroom facilities for employees exposed to lead in excess ofpermissible exposure limits).Disposition Affirmed with penalty of $400 assessed.\”Other\” Citation No. 2Item 1 alleged violation of 29 C.F.R. ? 1910.95(c)(1) (failureto institute and maintain a continuing and effective hearing conservation program).Disposition Affirmed as de minimis.Item 3 (c) alleged violation of 29 C.F.R. ? 1910.1025(d)(8)(i)(failure to 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) (failure to perform fit tests for respirators at time of initialfitting of employees exposed to lead in excess of PEL).DispositionAffirmed.Item 5 alleged violation of 29 C.F.R. ?1910.1025(j)(3)(i)(B)(failure to provide employees with medical examinations prior to assignment to an area inwhich airborne concentrations of lead are at or above the action level).DispositionVacated.The Act speaks in terms of the \”prevailing party.\” Inthis case each party prevailed as to some items and lost as to others. The ReviewCommission has made it clear that a party may recover even if the party prevailed only isto a \”discrete, substantive portion\” of the case. H. P. Fowler ContractingCorp., 84 OSAHRC 54\/C12, 11 BNA OSHC 1814, 1983-84 CCH OSHD ? 26,830 (No. 30-3699,1984), including aspects of the case that were settled by agreement of the parties. KDKUpset Forging, Inc., 1986-87 CCH OSHD ? 27,612 (No. 81-1932, 1987). The Actspecifies, 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 history asfollows:The test of whether or not a Government action is substantiallyjustified is essentially one of reasonableness. Where the Government can show that itscase had a reasonable basis both in law and fact, no award will be made.The standard, however, should not be read to raise apresumption that the Government position was not substantially justified, simply becauseit lost the case. Nor, in fact, does the standard require the Government to establish thatits decision to litigate was based on a substantial probability of prevailing. S. Rep. No.96-253, 96th Cong., 1st Sess. 6-7 (1979)The House Judiciary Committee report also includes thefollowing elaboration:The standard and burden of proof adopted in [EAJA] representsan acceptable middle ground between an automatic award of fees and the restrictivestandard proposed by the Department of Justice [that would permit fees to be awarded onlywhere the government action was arbitrary, frivolous, unreasonable, or groundless]. Itpresses the agency to address the problem of abusive and harassing regulatory practices.It is intended to caution agencies to carefully evaluate their case and not to pursuethose which are weak or tenuous. At the same time, the language of the section protectsthe government when its case, though not prevailing, has a reasonable basis in law andfact. H. R. Rep. No. 96-1418, 96th Cong., 2d Sess. at 13014The legislative history of the Act, as originally adopted,indicates that Congress did not intend an automatic award of fees in every instance wherethe government loses a case. The Act was intended to deter the government from institutinglegal proceedings which were not sound in law and fact and to compensate defendants forexpenses incurred in litigating such unjustified government actions. It was not intended,however, to deter the government from bringing legitimate enforcement actions even if thepossibility exists that some or all of the case may be lost due to the vicissitudes oflitigation.In 1985 amendments to the Act were made by the 99th Congress toextend and improve the Act as originally adopted. One of the principal areas whichCongress deemed the courts were overlooking in implementing the Act related to narrowconstruction of the clause, \”position of the agency.\” In adopting theamendments, Congress added the clause, \”substantially justified on the basis of theadministrative record, as a whole,\” and mandated that this clause be construed toencompass all agency action leading to litigation and not solely to the Government’sposition after litigation was instituted. Congress also mandated that the term\”substantially justified\” required a construction of more than \”merereasonableness.\” See House Judiciary Report 99-120, page 9, dated May 15, 1985, anddirected the term must \”be decided on a case by case basis due to the wide variety offactual contexts and legal issues which make up government disputes.\” Id. atpg 10. While Congress did make it clear that the Secretary’s position must be examined,the 85 amendments did not significantly alter the test for \”substantiallyjustified\”. The test remains one of \”reasonableness\”. Where it appears theSecretary’s position has a sound foundation in both law and fact, no award should be made.In keeping with the foregoing, the Secretary’s position in thiscase both before and during litigation will be scrutinized to determine if it was\”substantially justified\”; i.e., was reasonably based on law and fact.The case will be viewed in terms of those items that were withdrawn by the Secretary andthose items which were resolved through the litigation process.Items Withdrawn by the SecretaryPrior to trial the parties engaged in extensive settlementdiscussions and negotiations in an effort to resolve all items upon which agreements couldbe reached. As a result of these efforts, the Secretary agreed to withdraw items 1(a) and1(b) of serious Citation No. 1 which deals with alleged infractions of 29 C.F.R. ?1910.95, the standard dealing with occupational noise exposure.The Secretary has submitted an affidavit of Rachael Fish, thecompliance officer who conducted the inspection in this case, which sets forth theprocedures followed in her inspection. This affidavit (Ex. J-53) reflects the samplingtechniques employed by Fish were in accordance with accepted standards utilized inconducting such investigations and that the results of her testing indicated one molder,one shakeout operator, and one lathe operator were exposed to sound levels in excess ofpermissible limits set forth in the standard. The affidavit of Christopher J. Carney, theattorney representing the Secretary, reflects that during settlement discussions betweenthe parties conducted shortly before trial, the attorney for applicant submitteddocumentation not previously disclosed to the Secretary which tended to supportapplicant’s argument that the noise overexposure reported by Compliance Officer Fish mayhave resulted from the failure of the involved employees to follow applicant’s work rulesand might, therefore, support a defense of \”isolated incidence of employeemisconduct\” (Ex. J-53). Based upon this new evidence, and in the interest ofcompromise and settlement, counsel for the Secretary agreed to dispose of serious CitationNo. 1, items (a) and (b), short of litigation.The actions of the Secretary with respect to serious CitationNo. 1, items (a) and (b), at all stages of the proceeding were \”substantiallyjustified\”. The affidavit of Fish supports a conclusion that the charges relating tooverexposure to noise were based upon a careful inspection of applicant’s operations by aprofessional industrial hygienist who conducted her inspection in accordance withrecognized and accepted procedures and concluded that the noise standard had beenbreached. The action of the Secretary in bringing the charges was based upon the factscollected by Fish and was, therefore, fully Justified. The action of Secretary’s counselin disposing of these items after new evidence was presented was an appropriate andreasonable response and does not undermine the facts which formed the basis forinstituting the charges. Applicant is not entitled to an award with regard to seriousCitation No. 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 concerning exposureof employees to lead presents a somewhat different situation. The affidavit of Fishrecites that she conducted monitoring and determined that one sandblaster was overexposedto silica. She further affies that interviews of employees disclosed there\”inadequate training as to the hazards associated with lead contamination.\”While these sketchy facts might serve as a basis upon which to conclude that the Secretarywas justified in bringing these charges, they are undermined by the failure of Carney’saffidavit to deal directly with the reasons why the Secretary withdrew these items.Carney’s affidavit is not informative with respect to the reasons for the Secretary’swithdrawal of these items except to recite the decision was made \”after it wasdetermined it would be unlikely for the Secretary to prevail at hearing\” and thatdecision \”was not based on the conclusion the Secretary was not substantiallyjustified in issuing these citations.\” Such generalized statements without furtheramplification suggest the underlying basis of the Secretary’s charges may have been weakor tenuous. The Act and the Review Commission’s regulations place the burden of persuasionon the Secretary to show why an award should not be made to a prevailing party. In thisinstance, the Secretary’s failure to deal directly with the reasons for withdrawal hascreated a presumption that the underlying basis for the charges may not have beenjustified. Under these circumstances, 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-monthintervals on various employees exposed to lead resulted in concession by both parties. TheSecretary conceded three sub-items, and applicant conceded four. It is concluded thatneither party prevailed as to this item, and no award will be made.Items Resolved by the Litigation ProcessAs a result of litigation, the Secretary prevailed on two outof three serious items and three out of four items classified as \”other\” thanserious. [[4\/]]Item 2(b) of serious Citation No. 1 charged a failure by theapplicant to assure that employees exposed to lead above the permissible exposure limittook showers at the end of each work shift. This item was based on a determination by theSecretary’s hygienist that one employee in applicant’s polishing department (RubenSpurlock) who was overexposed to lead did not shower at the end of his work shift. Thefact that Spurlock was overexposed to lead was conceded by the applicant and wascorroborated by applicant’s own independent consultant. At the hearing, however, applicantintroduced two exhibits in support of its claim that Spurlock’s Sample was atypical. Theseexhibits tended to show that the test results obtained with respect to Spurlock were notrepresentative of the polishing department as a whole and the item was vacated on thisbasis. This result does not establish that the Secretary’s position had no basis in factor law or that the Secretary’s position was not \”substantially justified.\” Whatit does reflect is a posthearing assessment by the court after all the evidence wasreceived that the Secretary’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 applicantwith a failure to provide medical examinations to employees assigned to an area in whichthey were exposed to lead at or above the action level. The evidence at trial establishedthat all employees hired during the four and a half years preceding the hearing hadreceived the required medical examinations. At hearing the Secretary contended thatemployees hired earlier than four and a half years were not given the requiredexaminations but produced no testimony or other evidence to support this claim. [[5\/]] Itfurther appears the Secretary’s agents could have ascertained the pertinent facts duringthe investigation stage of the proceeding with the exercise of diligence. In thisinstance, the court found the Secretary did not make a prima facie case andit clearly appears that the Secretary’s position was without substantial justificationAccordingly, applicant is entitled to fees and expenses as to item 5.Determination of AwardApplicant is not entitled to recover fees and expenses withrespect to any of the serious items contained in Citation No. 1. These were thesignificant items of the case and contained the most important issues to be decided.Recovery is limited to the charges contained in \”other\” Citation No. 2, items2(a), 2(b), 3(a) and 6, which charges were withdrawn by the Secretary prior to trial andto item 5, which was litigated and lost by the Secretary for failure to make out a primafacie case. It is readily apparent that the total fees and expenses sought byapplicant must be substantially reduced to reflect a reasonable amount which comports withthose items upon which applicant is entitled to recover.The affidavit of Mark V. Webber sets forth the attorney hours expended on a daily basisbut does not allocate these hours on an item by item basis. It is impossible to allocatecosts as to each item with any degree of precision. Accordingly, it is necessary to arriveat some basis upon which reasonable allocation can be made.With regard to those items withdrawn by the Secretary prior totrial for which \”substantial justification\” was not established(\”other\” Citation No. 2, items 2(a), 2(b), 3(a) and 6), recovery will be limitedto a pro rata share of the hours expended by applicant up to the time of the Secretary’swithdrawal. Webber’s affidavit reflects approximately 400 hours were devoted to the caseup to the point of withdrawal. A total of 15 items were included in the citations (5serious and 10 \”other\”). Applicant is eligible to recover on four of these itemsor, roughly, 25 percent of the total. Accordingly, applicant is entitled to a pro ratashare of 100 hours computed at an hourly rate of $75.00, the maximum amount allowed by thestatute, 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 toisolate to some extent the hours expended by applicant in defending against this charge.Webber’s affidavit reflects the expenditure of 14 hours directly attributable to takingthe deposition of nurse Selvaggio (See Webber’s affidavit for entries made on February 26and 27, 1987, and March 4, 9, 13 and 25, 1987). An additional 36 hours will be allowed tocover the time involved in litigating and briefing this item for a total of 50 hours. Anaward of $3,750.00 will be made to cover attorney’s fees for Citation No. 2, item 5.In addition to attorney’s fees, applicant has incurred expenseswhich can be attributed to the allowed items. The affidavit of Webber reflects costs of$182.00 in connection with the deposition of nurse Selvaggio arid $760.00 in expert feesattributable to the silica charge. Applicant will be allowed a total of $2,000.00 to coverthe foregoing items and other attendant administrative costs and expenses.ORDER It is hereby ORDERED:Applicant is awarded a total of $13,250.00 to cover fees andexpenses incurred 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 wasconsolidated with another docket number, 86-1610, involving unrelated citations. CentralBrass withdrew its notice of contest in No. 86-1610, and the company’s EAJA applicationdoes not involve that case. Nevertheless, the parties and the judge have continued to useboth docket numbers to identify the EAJA case.[[2\/]] The judge allowed 100 hours at the statutory rate of $75per hour.[[3\/]] Although 5 U.S.C. ?504(c)(2) originally required thatjudicial review of agency awards use the \”abuse of discretion\” standard, thatsection was amended in 1985 to both preclude the United States from seeking judicialreview of an agency award and to impose the \”substantial evidence\” test as thestandard of review on those appeals taken by fee applicants.[[4\/]] The Secretary calls our attention to White v. UnitedStates, 740 F.2d 836 (11th Cir. 1984). In that case the court observed that the EAJAallows for recovery of fees incurred \”during\” adversary adjudications. However,the court did not limit recovery to those costs incurred \”during\” the adversaryadjudication. Rather, it held that the first of any recoverable fees are the costs ofpreparing and filing the petition or complaint that commences the civil action. Therefore,even if we held that the adversary adjudication begins with the filing of the notice ofcontest, under White, the costs associated with the preparation and filing of thenotice of contest would be recoverable.[[5\/]] We also note that 14 hours were allocated to thedisputed deposition. 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 on our determination ofthe relative difficulty and complexity of the items, and the degree of success obtained,not on a pro rata apportionment of the fees. While the facts of this case result in anaward equivalent to a pro rating of the total hours expended, in other situations we mayfind awards significantly above or below a pro rata apportionment to be appropriate.[[7\/]] In this regard, it should be noted that Commission Rule69, 29 C.F.R. ? 2200.69, expressly gives opposing parties the right to cross-examine anywitness whose testimony is introduced by an adverse party.[[1\/]] The Act provides:An agency that conducts an adversary adjudication shall award,to a prevailing party other than the United States, fees and other expenses incurred bythat party in connection with that proceeding, unless the adjudicative officer of theagency finds that the position of the agency was substantially justified or that specialcircumstances make an award unjust. Whether or not the position of the agency wassubstantially justified shall be determined on the basis of the administrative record, asa whole, which is made in the adversary adjudication for which fees and other expenses aresought.[[2\/]] Applicant opposes the filing of the Secretary’saffidavits on grounds that these affidavits were untimely filed. After due consideration,applicant’s motion is denied. All briefs, reply briefs, and affidavits are received andhave been considered in conjunction with my deliberations.[[3\/]] Applicant has filed a motion to withhold disclosure ofthe financial information contained in the affidavit of Richard A. Chandler. This motionhas been granted by separate order of the undersigned, and the record has been sealed withrespect to this document (Ex. J-56).[[4\/]] Two of the \”other\” items (one involved afailure to notify employees of monitoring results and the other a failure to provideyearly audiograms and training concerning hearing protection) were downgraded to \”deminimis\” but were affirmed. This change in characterization does not diminish thefact that the Secretary had justification for litigating her position but only that theviolations were considered by the court to be technical in nature rather than having adirect bearing on safety and health.[[5\/]] It is noted that applicant found it necessary to takethe deposition of Judy Selvaggio, the nurse who administered the examinations, to defendagainst this charge.”