“Docket No. 87-0255 SECRETARY OF LABOR,Complainant,v.PHOENIX ROOFING, INC.Respondent,OSHRC Docket No. 87-0255ORDER OF REMANDBefore: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:This case is before the Commission on remand from the UnitedStates Court of Appeals for the Fifth Circuit. Secretary of Labor v. Phoenix Roofing.Inc., 922 F.2d 1202 (5th Cir. 1991). In its decision, the Fifth Circuit reversed andremanded a decision of Administrative Law Judge Louis G. LaVecchia that granted, insubstantial part, the employer’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 awardedwhere the fee applicant was the prevailing party in the underlying action and where theSecretary has failed to establish that her actions were \”substantiallyjustified.,\” 5 U.S.C. ?504(a)(1). The court noted that while the judge found theemployer to be the prevailing party, he failed to make an explicit finding regardingwhether the Secretary’s actions were \”substantially justified.\” Therefore, itremanded the matter to the commission to determine whether the Secretary established thather actions were \”substantially justified.\”For the reasons stated by the Fifth Circuit, we remand thiscase to Judge LaVecchia and direct him to find whether the Secretary was\”substantially justified\” in issuing and prosecuting the citations againstPhoenix Roofing, and to render a decision consistent with that finding. Pursuant toCommission Rule 103, 29 C.F.R. ?2200.103, we order that further proceedings in this casebe expedited.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G WisemanCommissionerDated: April 24, 1991SECRETARY OF LABOR,Complainantv.PHOENIX ROOFING, INC.,Respondent.OSHRC Docket No. 87-0255Award of Fees & ExpensesUnder the Equal Access toJustice ActThe applicant for an award under the Act described above wasthe prevailing party in the proceeding leading up to this application. Its application hasbeen considered, along with a response in opposition by the complainant. Completeatomization of the work performed by the respondent’s attorney is not possible, of course,but the undersigned judge, drawing upon his own experience in similar matters as bothattorney and judge, is of the opinion that the claim for $8,584.33 is fair and equitablein the circumstances shown. Accordingly, the application is granted, without the necessityfor further proceedings.However, the application for a supplemental award of $825.00 isdenied. The respondent’s position in respect of the supplemental application is that thecomplainant’s objections to the initial application were responsible for its filing of aresponse, and that the preparation of the response entailed work totaling $825.00 invalue.The respondent’s response to the complainant’s objections tothe original application for an award was not necessary, in my opinion, since it was notrequested by me, nor is there anything in the Act which justifies the award of attorneys’fees for voluntary responses of that nature.So ORDERED.Louis G. LaVecchiaJudge, OSHRCDated: November 3, 1989Dallas”