“SECRETARY OF LABOR,Complainant,v.PHOENIX ROOFING, INC.Respondent,OSHRC Docket No. 87-0255_ORDER OF REMAND_Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:This case is before the Commission on remand from the United StatesCourt of Appeals for the Fifth Circuit. _Secretary of Labor v. PhoenixRoofing. Inc_., 922 F.2d 1202 (5th Cir. 1991). In its decision, theFifth Circuit reversed and remanded a decision of Administrative LawJudge Louis G. LaVecchia that granted, in substantial part, theemployer’s application for attorney’s fees under the Equal Access toJustice Act, 5 U.S.C. ?504 (\”EAJA\”).The court noted that, under the EAJA, fees can only be awarded where thefee applicant was the prevailing party in the underlying action andwhere the Secretary has failed to establish that her actions were\”substantially justified.,\” 5 U.S.C. ?504(a)(1). The court noted thatwhile the judge found the employer to be the prevailing party, he failedto make an explicit finding regarding whether the Secretary’s actionswere \”substantially justified.\” Therefore, it remanded the matter to thecommission to determine whether the Secretary established that heractions were \”substantially justified.\”For the reasons stated by the Fifth Circuit, we remand this case toJudge LaVecchia and direct him to find whether the Secretary was\”substantially justified\” in issuing and prosecuting the citationsagainst Phoenix Roofing, and to render a decision consistent with thatfinding. Pursuant to Commission Rule 103, 29 C.F.R. ?2200.103, we orderthat further proceedings in this case be expedited.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G WisemanCommissionerDated: April 24, 1991————————————————————————SECRETARY OF LABOR,Complainantv.PHOENIX ROOFING, INC.,Respondent.OSHRCDocket No. 87-0255Award of Fees & ExpensesUnder the Equal Access to_Justice Act_The applicant for an award under the Act described above was theprevailing party in the proceeding leading up to this application. Itsapplication has been considered, along with a response in opposition bythe complainant. Complete atomization of the work performed by therespondent’s attorney is not possible, of course, but the undersignedjudge, drawing upon his own experience in similar matters as bothattorney and judge, is of the opinion that the claim for $8,584.33 isfair and equitable in the circumstances shown. Accordingly, theapplication is granted, without the necessity for further proceedings.However, the application for a supplemental award of $825.00 is denied.The respondent’s position in respect of the supplemental application isthat the complainant’s objections to the initial application wereresponsible for its filing of a response, and that the preparation ofthe response entailed work totaling $825.00 in value.The respondent’s response to the complainant’s objections to theoriginal application for an award was not necessary, in my opinion,since it was not requested by me, nor is there anything in the Act whichjustifies the award of attorneys’ fees for voluntary responses of thatnature.So ORDERED.Louis G. LaVecchiaJudge, OSHRCDated: November 3, 1989Dallas”