“Docket No. 80-2903 SECRETARY OF LABOR, Complainant, v.FEDERAL CLEARING DIE CASTING COMPANY,Respondent.OSHRC Docket No. 80-2903DECISION Before:\u00a0 ROWLAND, Chairman, CLEARY and COTTINE, Commissioners. BY THE COMMISSION:This case is before us on review of Administrative Law Judge Ralph B. Maxwell’s decisiondismissing Federal Clearing Die Casting Company’s application for attorneys’ fees underthe Equal Access to Justice Act, Pub. L. No. 96-481, 94 Stat. 2325 (1980).\u00a0 We havejurisdiction pursuant to 29 U.S.C. ? 661(i) and 5 U.S.C. ? 504.\u00a0 See 46 Fed. Reg.48,078, 48,083 (1981)(to be codified at 29 C.F.R.? 2204.309).\u00a0 We affirm the judge’sdismissal of the application but for a different reason than that given by the judge.I Respondent, Federal Clearing Die Casting Company (\”Federal\”),contested citations issued to it by the Secretary alleging violations of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”OSH Act\”).\u00a0 JudgeMaxwell suppressed the Secretary’s evidence and dismissed the citations on the basis thatthe warrant authorizing the Secretary’s inspection of Federal’s plant during which theevidence was obtained was invalid.\u00a0 The judge relied on the decision of the SeventhCircuit in a collateral proceeding involving the validity of this warrant. [[1\/]]\u00a0 The Secretary sought Commission review of the judge’s decision, but review was notdirected and the judge’s decision became a final order of the Commission by operation oflaw.\u00a0 See 29 U.S.C. ? 661(i). The Secretary filed a petition for review of theCommission final order in the United States Court of Appeals for the Seventh Circuit,pursuant to section 11 of the OSH Act. [[2\/]]Federal then filed with the Commission an application under the Equal Accessto Justice Act (\”EAJA\”) for an award of attorneys’ fees incurred in contestingthe citations.\u00a0 Judge Maxwell dismissed the application on the basis that the SeventhCircuit’s ruling denying an application for fees filed with it was \”the law of thecase.\”\u00a0 Federal petitioned for Commission review of the judge’s dismissal of itsfee application and Chairman Rowland directed review.\u00a0 The judge’s dismissal ofFederal’s fee application under EAJA is now before us.IIFinding that \”certain individuals, partnerships, corporations, and laborand other organizations may be deterred from seeking review of, or defending against,unreasonable governmental action because of the expense involved in securing thevindication of their rights . . .,\” Congress sought to diminish that deterrent effectby authorizing, through EAJA, the award of attorney fees, expert witness fees, and othercosts to certain parties that prevail against the United States in court actions oradministrative proceedings. Pub. L. No. 96-481, ? 202, 94 Stat. 2325 (1980).\u00a0 Thus,EAJA requires an agency that conducts adversary adjudications, such as the Commission, toaward to a prevailing party, other than the United States, fees and other expensesincurred by the party in connection with the proceeding, unless the position of thegovernment as a party was substantially justified or special circumstances make an awardunjust.\u00a0 5 U.S.C. ? 504(a)(l).\u00a0 EAJA applies to any adversary adjudicationpending on, or commenced after, October 1, 1981. Pub. L. No. 96-481, ? 208, 94 Stat.2325, 2330.\u00a0 To be eligible for an award of fees and expenses under EAJA, a partythat is a business, an association, or a private or public organization must employ nomore than 500 employees and, except for certain tax exempt organizations and agriculturalcooperatives, must have a net worth of no more than $5 million at the time the adversaryadjudication was initiated.\u00a0 5 U.S.C. ? 504 (b)(1)(B).The Commission’s interim rules implementing EAJA specify that the partyseeking an award has the burden of showing that it is eligible for the award, while theSecretary has the burden of showing that an award should not be made.\u00a0 46 Fed. Reg.48,078, 48,081 (1981) (to be codified at 29 C.F.R. ?? 2204.105 – 2204.106).\u00a0 Therules also provide that the term \”adversary adjudication\” as used in EAJAincludes employers’ contests of citations or penalties before the Commission.\u00a0 46Fed. Reg. 48,078, 48,081, (1981) (to be codified at 29 C.F.R. ? 2204.104).When a court reviews an agency decision resulting from an adversaryadjudication, EAJA authorizes the court to award to a non-federal prevailing party feesand other expenses incurred in connection with the agency proceeding, as well as fees andexpenses incurred in the court review.\u00a0 28 U.S.C. ?? 2412(d)(1) & 2412(d)(3).\u00a0 Additionally, EAJA provides that when a court reviews the decision resulting fromthe adversary adjudication, an award for fees and other expenses may be made only by thecourt.\u00a0 5 U.S.C. ? 504(c)(1).\u00a0 To effectuate this provision of the statute, theCommission’s rules provide that \”[i]f review of a Commission decision . . . is soughtin the court of appeals under section 11 of the OSH Act, 29 U.S.C. 660, an application foran award filed with the Commission with regard to that decision shall be dismissed . . ..\”46 Fed. Reg. 48,078, 48,082 (1981) (to be codified at 29 C.F.R. ? 2204.302(c))In this case, Federal filed with the Commission an application for attorneys’fees under EAJA after the Secretary had sought appellate review of the decision withregard to which the attorneys’ fees were requested.[[3\/]] Therefore, the judge lackedauthority to grant Federal’s application, and the application should have been dismissedunder the above-quoted Commission rule. Thus, it is not necessary for us to reach the issue, posed in Federal’s petition forreview, of whether the Commission is bound in ruling on the fee application in this caseby the Seventh Circuit’s decision denying attorneys’ fees to Federal in a related case.Accordingly, Judge Maxwell’s order dismissing Federal’s application for attorneys’ fees isaffirmed.SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARYDATED:\u00a0 JAN 31 1983 The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1\/]] When a compliance officer attempted to inspect Federal’s plantpursuant to an ex parte warrant on January 11, 1980, Federal refused entry and was held incivil contempt by a federal district court.\u00a0 In re Establishment Inspection ofFederal Clearing Die Casting Co., 8 BNA OSHC 1635, 1980 CCH OSHD ? 24,437 (N.D. Ill.1980).\u00a0 The Seventh Circuit then denied Federal’s motion for a stay pending appeal.\u00a0 After a further hearing in the district court, Federal agreed to permit theinspection, which resulted in the citations contested before Judge Maxwell.Subsequently, the Seventh Circuit reversed the district court’s decision anddissolved the warrant, finding that it had not been issued on probable cause.\u00a0 Donovan v. Federal Clearing Die Casting Co., 655 F.2d 793 (7th Cir. 1981).\u00a0 After prevailing in the court of appeals, Federal filed an application there for anaward of attorneys’ fees under EAJA.\u00a0 Although the court had found the warrantinvalid, it declined to award fees to Federal.\u00a0 Because the district court hadenforced the warrant and a stay pending appeal had been denied, the appellate courtconcluded that the government’s position could not be considered to have been\”without substantial justification.\”[[2\/]] A divided Seventh Circuit panel subsequently reversed the judge’s decisionsuppressing the evidence and remanded the case for hearing on the merits.\u00a0 Donovan v.Federal Clearing Die Casting Co., 11 BNA OSHC 1014, 1982 CCH OSHD ? 26,340 (7th Cir. Dec.9, 1982).[[3\/]] As noted above, see note 2, that decision was subsequently reversed bythe Seventh Circuit.”