“SECRETARY OF LABOR,Complainant,v.WILLIAM B. HOPKE COMPANY, INC.,Respondent.OSHRC Docket No. 81-0206_DECISION_Before: BUCKLEY, Chairman, and WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).Both the Secretary and the William B. Hopke Company claim that AssistantChief Administrative Law Judge Irving Sommer erred in his disposition ofHopke’s application for attorney’s fees under the Equal Access toJustice Act, 5 U.S.C. ? 504 (\”the EAJA\”). We affirm the judge’s decision._Citation 1: 29 C.F.R. ? 1926.201(a)(2), Signals by Flagman_The Secretary issued several citations to William B. Hopke Company, Inc.Citation 1 complained of the traffic signaling directions given byHopke’s flagman. The cited OSHA standard, 29 C.F.R. ? 1926.201(a)(2),states:? 1926.201 _Signaling_.(a) _Flagmen_* * *(2) Signaling directions by flagmen shall conform to American NationalStandards Institute D 6.1-1971, Manual on Uniform Traffic ControlDevices for Streets and Highways.Paragraph 6E-4 of the ANSI standard states in part:6E-4 _Flagging Procedures_The following methods of signaling with a flag should be used:1. _To Stop Traffic_. The flagman _shall_ face traffic and . . . .2. _When it is Safe for Traffic to Proceed_. The flagman _shall_ stand. . . .3. _Where it is Desired to Alert or Slow Traffic_. By means offlagging, the flagman _shall_ face traffic and . . .(Emphasis added.)Judge Sommer vacated the citation. He noted that section 6E-4 of theANSI standard states that the methods it described for signaling\”should\” be used. The judge also observed that under ANSI section 1A-4,which defines \”should,\” \”shall,\” and \”may\” for purposes of the _Manualon Uniform Traffic Control Devices_, a standard using \”should\” isadvisory, not mandatory.Neither party sought review of the judge’s decision. After it became afinal order of the Commission, Hopke filed an application for fees andexpenses incurred in defending against the flagman citation. JudgeSommer held that Hopke was entitled to an award but awarded less thanHopke sought. Both parties petitioned for review of the judge’s EAJAdecision, and both petitions were granted.A. _Substantial Justification_Under the EAJA, an employer who prevails in a contest of an OSHAcitation and who meets certain limits on net worth and number ofemployees is entitled to an award of attorney fees and other expenses,unless the Secretary shows that his position was substantially justifiedor that special circumstances make an award unjust.[[1]] There is noquestion that Hopke was the prevailing party as to citation 1. Theissue here is whether the Secretary established substantial justification.The Secretary argues that, although the introductory sentence to theANSI standard uses \”should,\” the ANSI standard’s various detailedrequirements and the adopting OSHA standard are couched in the mandatory\”shall.\” Inasmuch as such a \”mixed\” standard had not been heldunenforceable before Judge Sommer issued his decision, the Secretaryreasons, his position was based on a novel but credible interpretationof the law and was substantially justified.To establish \”substantial justification\” the Secretary must show thathis position was reasonable in law and fact.[[2]] The Secretary must bemindful, however, that the substantial justification standard wasadopted as a \”caution to agencies to carefully evaluate their case andnot to pursue those which are weak or tenuous.\”[[3]] The Secretary’scase on citation 1 represented the verytype of weak and tenuous case that Congress sought to discourage bypassing the EAJA. As Judge Sommer noted, both the Commission and thecourts had issued numerous decisions holding that an ANSI standard whichuses \”should\” remains advisory even after being adopted as an OSHAstandard. _E.g_., _Brown & Root_, _Power Plant Div._, 80 OSAHRC 112\/D2,9 BNA OSHC 1027, 1980 CCH OSHD ? 24,958 (No. 76-2938, 1980), and themany cases cited therein. These numerous cases, and the use of \”should\”in the critical introductory sentence of the ANSI standard, should haveconvinced the Secretary that, while his reliance on the mix of \”should\”and \”shall\” in the applicable standards may not have been frivolous, hisposition was too weak and tenuous to be substantially justified.We do not, however, rest our decision entirely on that ground. Althoughthe Secretary contends that he \”was entirely justified in urging thatthe Commission adopt . . . a novel but credible extension of the law,\”the record fails to indicate that that _was_ the Secretary’sjustification for issuing or prosecuting the citation. The Secretary’spost-hearing brief failed to mention the issue even though the issue wasapparent from the face of the ANSI standard and was raised by Hopke atthe hearing. Nowhere in the pre-EAJA record did the Secretary arguethat the standard should not be construed as advisory. The Secretarymade such an argument only after Hopke filed its EAJA application. Inasmuch as this argument was evidently not the Secretary’sjustification for issuing or prosecuting the citation, it cannot serveas a foundation for his substantial justification argument. _Del Mfg.Co. v. United_ _States_, 723 F.2d 980, 987 n.1 (D.C. Cir. 1983)(Wald,J., dissenting), _cited with approval in_ H.R. Rep. 120 at 10 n.19, 1985U.S. Code Cong. & Ad. News at 139._The Amount of the Award_Judge Sommer awarded Hopke $3,131.45 for attorney’s fees and expenses onthe flagman citation, rather than the $6,733.44 Hopke had requested. Considering the simplicity of the issues and the short time required forthe trial of the flagman citation, the judge found that the amountrequested by Hopke was unreasonable. Hopke claims that the amountawarded by Judge Sommer is too low and that the judge had no discretionto limit an award to what he determines is \”reasonable.\” The Secretary,on the other hand, argues that the amount awarded is still too high. Weleave Judge Sommer’s award undisturbed.We turn first to Hokpe’s objection to Judge Sommer’s award of less thanHopke paid its attorneys to litigate the flagman citation. The Judgenoted that under the EAJA, only \”reasonable\” attorneys’ fees may beawarded. See 5 U.S.C. ? 504(b)(1)(A)(defining \”fees and other expenses\”to include \”reasonable attorney or agent fees\”); 29 C.F.R. ?2204.107(c)(stating criteria for determining reasonableness of fees). Judge Sommer determined that some of the fees paid by Hopke to one ofits attorneys were not reasonable because they were excessive in lightof the relative lack of novelty and difficulty of the issues. The judgeobserved that \”time alone cannot be the sole evidence for determining afee for, were it so, it might encourage unnecessary litigation.\” Inconcluding that \”an inordinate amount of time used . . . wasnonproductive,\” Judge Sommer found that the flagman citation \”was apedestrian problem requiring no significant time or research effort\” andthat out of over 700 pages of testimony, the flagman citation covered nomore than 20. In view of the simplicity of the issues, Judge Sommerconcluded that a reasonable amount of time to defend against thecitation was 33 hours, compensable at $75 per hour, for a total of $2,475.Hopke claims that the judge’s finding on how much Hopke should haveincurred \”is based on nothing more than his own speculation andsubjective judgment as to how [Hopke’s] attorneys should have dischargedtheir professional responsibilities.\” Hopke claims that the judge wasrequired to form his views based solely on the unrebutted record ofHopke’s expenditures, and that he had no discretion to reduce an awardin the absence of a finding that Hopke \”unduly and unreasonablyprotracted the final resolution of the matter in controversy\” under 5U.S.C. ? 504(a)(3).Hopke’s arguments take no cognizance of the \”reasonableness\” limitationsin the EAJA, particularly 5 U.S.C. ? 504(b)(1)(A) and the Commission’srules of procedure. One of the Commission’s rules, 29 C.F.R. ?2204.107(c)(4), expressly requires the judge to consider \”the difficultyor complexity of the issues\” in determining the reasonableness of thefees actually paid. In deciding whether the hours spent werereasonable, the courts have held a judge may consider the complexity ofthe case and the novelty of the issues involved and may weigh the hoursagainst his own knowledge, experience, and expertise of the timerequired to complete similar activities. _See_ _Johnson v. GeorgiaHighway Express, Inc_., 488 F.2d 714, 717 (5th Cir. 1974).[[4]] Accordingly, it is appropriate for the judge to bring to bearconsiderations outside of the record such as his knowledge, expertiseand experience in occupational safety and health law. How complex ordifficult a case is, how much effort a certain citation requires, callfor judgments that are, at least in part, of necessity subjective; inany event, they cannot be determined simply from the face of anattorney’s affidavit that he charged a client a certain fee, nor arethey entirely susceptible to conventional proof. We also observe thatto the extent that conventional proof can be of value, it is the burdenof the applicant to show the reasonableness of its claim. We must,therefore, reject Hopke’s argument that Judge Sommer lacked theauthority to award less than its attorney actually charged. We also seeno reason to overturn Judge Sommer’s determination of what a reasonablefee is.The parties also debate various other details of Judge Sommer’scalculation of the fees and expenses Hopke should be awarded. We findthat Judge Sommer made a reasonable calculation of the amount Hopkeshould receive, and affirm his award on citation 1._Citation 2: 29 C.F.R. ?? 1926.652(d) & (k), trench boxes_In his decision on the merits, Judge Sommer vacated citation 2, in whichthe Secretary alleged that Hopke violated two trench standards. In hisdecision on the fee application, however, Judge Sommer held that theSecretary had established substantial justification. The judge notedthat he had vacated citation 2 because there emerged at the trialvarying estimates of certain critical trench dimensions. Judge Sommerstated, however, that the material in possession of the Secretary whenhe issued and litigated the citation \”was persuasive that there was infact and law a violation. . . \”On review, Hopke raises for the first time in this EAJA proceedingseveral lengthy and detailed arguments to support its position thatJudge Sommer erred on the substantial justification issue. Thesearguments challenge the validity of a post-citation amendment, theSecretary’s interpretation of the standards, and the validity of onestandard.We first note that none of Hopke’s arguments were raised before JudgeSommer in the EAJA phase of this litigation as reasons for a lack ofsubstantial justification. Judge Sommer’s decision vacating thecitation rested on his finding that certain trench measurements wereincorrect. Hopke’s petition for fees did not suggest any other groundsfor finding a lack of substantial justification. The Secretary’sresponse to the application discussed only the ground for vacationmentioned in the judge’s decision. Finally, during the six-monthinterval between the filing of the Secretary’s opposition to the feeapplication and the judge’s final decision on the application, Hopke didnot bring to the judge’s or the Secretary’s attention that there mightbe reasons for finding a lack of substantial justification other thanthe reason the judge had given for vacating the citation. Inasmuch asHopke did not give Judge Sommer the opportunity to rule on othersubstantial justification issues, we will not consider them now.[[5]]Although we do not pass on Hopke’s additional issues, we see reason todoubt their merit in an EAJA proceeding. Hopke essentially argues thatthe Secretary’s litigating position was in error, but we are not, in anEAJA proceeding, called upon to decide the correctness of a feeapplicant’s arguments that a citation lacked merit. Rather, our task isto determine whether the Secretary was or should have been aware thatthe citation lacked substantial justification. At least some of theissues now raised by Hopke are complex and are of the sort over whichreasonable men could differ; we doubt that even close scrutiny wouldshow that the Secretary’s positions could be termed weak or tenuous. Other issues were not presented in a way that would have made theSecretary aware of a weakness, if any, in his case. For example,Hopke’s amended answer broadly pleaded that \”the construction safetystandards at issue were not promulgated or adopted in accordance withlaw and are null and void.\” Hopke failed to explain, until it filed apost-hearing brief, its theory that one of the cited trenching standardsis invalid because it differs substantively from the established federalstandard it was derived from, an argument that requires resort toFederal Register issues of early 1971 to evaluate. The Secretary isentitled to presume that the version of a standard in the currentedition of the Code of Federal Regulations is valid.[[6]] He thereforewas justified in prosecuting the citation at least until this invalidityargument clearly appeared–here, when the post-hearing brief wasfiled.[[7]] Hopke has made no claim for fees and expenses incurredthereafter on that issue.Accordingly, the judge’s decision on the fee application is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: October 10, 1986————————————————————————SECRETARY OF LABORComplainantv.WILLIAM B. HOPKE COMPANY, INC.RespondentDOCKET NUMBER 81-0206_DECISION AND ORDER_Petitioner William B. Hopke Company, Inc., a prevailing party on two ofthree citations issued by the Secretary of Labor seeks an award ofattorney’s fees and other expenses pursuant to 28 U.S.C. ? 2412, aprovision of the Equal Access to Justice Act (EAJA), P.L. 96-481, TitleII, 94 Stat. 2325 (1980).In an interim decision dated November 19, 1982[[1\/]] Respondent wasfound to be the prevailing party as to the violation alleged of 29C.F.R. 1926.1903.2(a)(1). As to the alleged violation of 29 C.F.R.1926.652(k) (later amended to add 29 C.F.R. 1926.652(d)) the Secretarywas found to have substantial justification for proceeding against theRespondent on this violation and no attorney fee is allowable. Thedecision found the Respondent entitled to attorney’s fees and costsrelating to the defense of serious Citation No. 1 alleging violation of29 C.F.R. 1926.201(a)(2) and the Respondent was directed to submit indetail an application for fees and costs relating solely to the legaldefense of this violation.On December 3, 1982, Robert D. Moran, attorney for the Respondent, filedan application for attorney’s fees and costs concerning the defense of29 C.F.R. 1926.201(a)(2) for both himself and for E. Waller Dudley,Esquire. Mr. Moran specified that he had expended 69.30 hours at theallowable rate of $75.00 per hour for a total fee request of $5,197.50plus disbursements of $649.34 for a total of $5,846.84. Mr. Dudleyclaimed a total of 11.9 hours at rates of $70.00 to $75.00 per hourtotaling $852.50 plus $34.10 of disbursements for a total of $886.60.Under the EAJA at 5 U.S.C. ? 504(a) an \”agency that conducts anadversary adjudication\” is authorized to \”award to a prevailing partyother than the United States, fees and other expenses incurred by thatparty in connection with that proceeding, unless the adjudicativeofficer of the agency finds that the position of the agency as a partyto the proceeding was substantially justified or that specialcircumstances make an award unjust.\”Under the EAJ Act’s provision at 5 U.S.C. ? 504(b)(1)(a) the amount offees awarded to the attorney must be \”reasonable\” with a $75.00 per hourlimit set unless the agency provides otherwise.[[2\/]]Having prevailed in its defense of the alleged violation of seriousCitation No. 1, and there are no special circumstances which would makean award unjust, we are faced with the question whether the attorney’sfees and expenses requested are reasonable.A petition for fees and expenses was submitted by two attorneys, i.e.Robert D. Moran, Esq. and E. Waller Dudley, Esq. Mr. Dudley apparentlywas initially retained herein, and was superceded by Mr. Moran. Thepetition of Mr. Dudley covers the period of December 30, 1980 throughand including March 23, 1981, and requests the sum of $852.50 for legalfees spanning 11.9 hours, and expenses of $34.10. Mr. Moran’s petitioncovers the period of March 11, 1981 through and including November 22,1982 and requests the sum of $5,197.50 for legal fees and $649.34 fordisbursements.Firstly, concerning the application of Mr. Dudley it is noted that heinitially alleged 35.1 hours of legal services with a total fee of$2,973.00. After the interim decision which disallowed any legal feesfor the trenching violation, and requested a fee application only forlegal work involving the defense of the flag waving violation (29 C.F.R.1926.201(a)(2)) his application listed 11.9 hours of work for a totalfee of $852.50 (3 hours of Mr. Dudley’s services were at the allowablerate of $75.00 per hour, and two associates were 8 hours at $70.00 an hour).In submitting this amended fee application Mr. Dudley alleges the timespent on the improper signaling issue is approximately one third thepreviously submitted bill.A review of the fee petition reveals that about two thirds of the legalservices listed or 8 hours, are described as conferences and sheds nofurther light on actually what if any thing transpired which related tothe sole remaining legal problem, i.e. the improper signaling. Whetherit was Mr. Dudley or his associates that conducted these conferences isnot stated. Of course, their time would not come close to being asvaluable as one of the principal attorneys. As to the remaining fourhours, one could conclude it consisted of research, answering pleadings,filing a notice of contest, etc. In short, the petition submitted failswoefully in fully describing and delineating the legal activitiesperformed by each of the attorneys. Considering that only workperformed in connection with the signaling violation is recompensable,the relative simplicity of this issue, and the lack of properdocumentation by Mr. Dudley, I think it is reasonable that he be allowedfour (4) hours at $75.00, and two (2) hours at $70.00 for hisassociates, or a total fee of $440.00. Costs alleged which were basedon a percentage of his legal bill are unacceptable. There being noactive demonstration of other costs this item is disallowed.Concerning the application of Mr. Moran, initially he alleged 124 hoursof legal services at rates of $100.00 to $125.00 totaling $15,216.84. In his amended petition relating solely to the signaling violation healleges 69.30 hours expended at the allowable rate of $75.00 amountingto $5,197.50. It is noted that in his amended application whileseeking a $75.00 hourly reimbursement because of the statuteconstrictions, part of the services were allegedly performed at $100.00per hour, and part at $125.00. Apparently another unnamed individualworked with Mr. Moran on the case. While it is acknowledged that Mr.Moran is an experienced knowledgeable attorney, with great legal talentin the occupational safety and health area, there is no evidencedemonstrating the skills and background of whoever else worked on thismatter (their background, skill and legal acumen might not be billableat $75.00 an hour).The issue to be resolved is whether the fees and expenses requested arereasonable. Determination of the reasonableness of a fee request wouldnecessarily start with as the court stated in _Copeland v. Marshall_,642 F.2d 880, 891 (D.C. Cir. 1980), \”the ‘lodestar:’ the number ofhours reasonably expended multiplied by a reasonable hourly rate.\” However, time alone cannot be the sole criteria for determining a fee,for were it so, it might encourage unnecessary litigation. \”Nocompensation is due for nonproductive time.\” _Copeland v. Marshall_,supra, 641 F. 2d at 891.Additionally in determining the reasonableness of a fee application,other criterion can be utilized. Of cardinal importance is the \”noveltyand difficulty of the questions\” _Johnson v. Georgia Highway Express,Inc_., 448 F.2d 714, 718 (5th Cir. 1974). The instant matter neitherpresented a novel issue nor one of inherent difficulty. The signalingcitation at issue was a question of law, as to the statutoryconstruction of \”should\” or \”shall\”. It was a pedestrian problemrequiring no significant time or research effort either at the pre-triallevel or at the trial. This can be readily seen when it is observedthat in a five day trial this particular issue took no more than between1-1\/2 to 2 hours of complete examination (out of approximately 750 pagesof testimony, this required no more than 20 pages).There is no gainsaying that the legal services of Mr. Moran herein wereexpert, and that he possesses outstanding legal expertise and skills inthe occupational safety and health field. His skills resulted in adismissal of the signaling violation.However, after my full analysis of the violation alleged, its relativesimplicity, the time required for trial it is apparent that the allegedtime expended and for which a fee application has been filed isexcessive. For example, trial and trial preparation of this simplesignaling citation is alleged to have consumed 18 hours, with thepost-trial brief consuming 34.5 hours. Considering the legal questionat issue, it is apparent that an inordinate amount of time used hereinwas nonproductive, and not compensable.Taking into consideration the question of law involved, the pre-trialand trial procedures herein relating thereto, and all other legalservices including research required on this issue, I believe that areasonable amount of time spent both preparing and trying this caseamounted closer to 33 hours or one third of the time alleged. Theattorney has not demonstrated his entitlement to the amount of feerequested be awarded to him. Accordingly, I find he is entitled toreceive a fee of $2,475.00 for attorney’s fees herein. In a like mannerhe is not entitled to be fully reimbursed for fees expended of $649.34. These fees covered all of the three citations. For instance, thecompleted 700 plus page transcript cost $592.13, but the signaling issuewhich is solely before this tribunal covered no more than 20 pages;costs applicable only to this item can be reimbursed. In short, I findthat petitioner is entitled to a total reimbursement of one third of thecosts alleged or the sum of $216.45 under all the existing facts andcircumstances._Findings_1-8. The findings set forth in the interim decision dated November 19,1982, are hereby reaffirmed and made part of this decision.9. Pursuant to the order dated November 19, 1982, an application forattorney’s fees and costs relative to the alleged violation of 29 C.F.R.1926.201(a)(2) was filed.10. The issue in the proceeding concerning the defense of the allegedviolation of 29 C.F.R. 1926.201(a)(2) was not difficult or complex.11. The petition for attorney’s fees indicated an inordinate length oftime spent in the representation of the Respondent considering thenature of the case.12. Considering the lack of difficulty or complexity of the issuesconcerning the defense of the alleged violation of 29 C.F.R.1926.20(a)(2) the attorney’s fees and costs petitioned for wereunreasonably high.13. Considering the complexity of the case, the time reasonablyrequired in defense, the skills necessary to defense this particularviolation alleged, and the professional standing and expertise of theattorneys they are entitled to the following fees and costs:Robert D. Moran, Esq., Fee $2,475.00 Costs 216.45 TOTAL $2,693.45E. Waller Dudley, Esq., Fee $440.00 Costs -0- TOTAL $440.00_Conclusions of Law_1. William B. Hopke Company, Inc. is an eligible prevailing party underthe Equal Access to Justice Act as to Citation No. 1 which alleged aviolation of 29 C.F.R. 1926.201(a)(2) and Citation No. 2 which alleged aviolation of 29 C.F.R. 1926.652(k) (later amended to add 29 C.F.R.1926.652(d).2. The Commission has jurisdiction over the parties and subject matter.3. The Secretary of Labor was substantially justified in its actionagainst the Respondent alleging violation of 29 C.F.R. 1926.652(k)(amended to add 29 C.F.R. 1926.652(d)).4. Respondent is not entitled to an award of attorneys fees and costspursuant to 28 U.S.C. 2412 with respect to Citation No. 2 which allegeda violation of 29 C.F.R. 1926.652(k) (amended to add 29 C.F.R. 1926.652(d)).5. The Secretary of Labor was not substantially justified in its actionagainst the Respondent with respect to Citation No. 1 which alleged aviolation of 29 C.F.R. 1926.201(a)(2).6. William B. Hopke Company, Inc. is entitled to reasonable attorney’sfees of $2,475.00, and reasonable costs of $216.45 or a total of$2,691.45 for Robert D. Moran, Esq. and for a reasonable attorney’s feeof $440.00 and no costs for E. Waller Dudley, Esq._ORDER_The petition of William B. Hopke Company, Inc. for attorneys’ fees andexpenses under the Equal Access to Justice Act is hereby granted to theextent that the petitioner is awarded a total of $3,131.45 for fees and$216.45 for expenses.IRVING SOMMERJudge, OSHRCDated: February 17, 1983Washington, D.C.————————————————————————SECRETARY OF LABORComplainantv.WILLIAM B. HOPKE COMPANY, INC.RespondentDOCKET NUMBER 81-0206_DECISION AND ORDER _Sommer, JudgePetitioner William B. Hopke Company, Inc., a prevailing party on two ofthree citations issued by the Secretary of Labor seeks an award ofattorney’s fees and other expenses pursuant to 28 U.S.C. ? 2412, aprovision of the Equal Access to Justice Act (EAJA), P.L. 96-481, TitleII, 94 Stat. 2325 (1980).Section (d)(I)(A) of 28 U.S.C. ? 2412 provides, in pertinent part:\”(A) Except as otherwise specifically provided by statute, a court shallaward to a prevailing party other than the United States fees and otherexpenses, in addition to any costs awarded pursuant to subsection (a),incurred by that party in any civil action (other than cases sounding intort) brought by or against the United States in any court havingjurisdiction of that action, unless the court finds that the position ofthe United States was substantially justified or that specialcircumstances make an award unjust.\”The legislative history indicates that the test of whether thegovernment was substantially justified is one of reasonableness. H.Rep. No. 1418, 96th Cong., 2d Sess., p. 10 (1980), reprinted in U.S.Code Cong. & Ad. News 4989. While the burden is on the government todemonstrate its action was substantially justified, \”the standard,however, should not be read to raise a presumption that the governmentposition was not substantially justified, simply because it lost thecase. Nor, in fact, does the standard require the government toestablish that its decision to litigate was based on a substantialprobability of prevailing…\” H. Rep. No. 96-1418 supra at 4948-4990 (1980).In the present case the Secretary of Labor issued three citations to theRespondent which alleged: 1) serious violation of 29 C.F.R.1926.201(a)(2); 2) willful violation of 29 C.F.R. 1926.652(k) (lateramended to allege violation of 1926.652(d) in addition); and 3)nonserious violation of 29 C.F.R. 1903.2(a)(1).The Respondent was the prevailing party in the section as to the allegedviolation of 29 C.F.R. 1926.201(a)(2) and 29 C.F.R. 1926.652(k) and theamendment. It did not prevail as to 29 C.F.R. 1903.2(a)(1).As to 1926.652(k) and 1926.652(d) the Secretary contended that trenchboxes (or shields) being used by the Respondent in a trench excavationwere ineffective to the bottom of the trench causing a hazard to theemployees of possible trench cave-in. The proof established that atrench box within three feet of the trench bottom is effective to thebottom thereof. The Secretary introduced evidence demonstrating thatthe trench boxes ranged from 3 feet to approximately 6 feet above thetrench bottom: these were based on estimates by the complianceofficer. There was other evidence suggesting that the trench boxes wereapproximately 4 feet above the trench bottom. In view of the varyingestimates and the conflict existent, this citation was vacated as notbeing proven by a preponderance of the evidence as required.However, this does not signify that the Secretary’s action in issuingthe citation and pursuing it to trial was not substantially justified.It is apparent that the Secretary’s actions were done in good faith andfor a legitimate purpose under the Occupational Safety and Health Act. The material in possession of the Secretary at the time of the issuanceof the citation and subsequent trial was persuasive that there was infact and law a violation of the section charged. It was not until therebuttal material which was received at the trial was consideredtogether with all the available evidence that it was concluded that theweight of the evidence did not demonstrate a violation by thepreponderance required. However, based on all the evidence it cannot besaid that the Secretary’s position was not a reasonable one. In short,the Secretary’s position cannot be judged on 20\/20 hindsight. Theevidence possessed at the time of the issuance of the citation andsubsequent trial demonstrate that the Secretary was substantiallyjustified in proceeding against the Respondent on this alleged violation.As to the alleged violation of 29 C.F.R. 1926.201(a)(2) which was heldto be merely advisory in nature and therefore not a valid basis forfinding a violation existed, the contention of the Secretary that he wasjustified in the enforcement of this violation is without merit. TheCommission cases are legion holding that standards adopted from advisorysource standards are advisory under the Act. See _Brown and Root, PowerPlant Division_, 9 BNA 1027 (1980), and cases cited therein. TheSecretary has not succeeded in showing its actions concerning thiscitation were substantially justified, and I further find no specialcircumstances which would make an award unjust.The Secretary alleges no fee can be paid for services rendered prior toOctober 1, 1981, the effective date of the Equal Access to Justice Act. This allegation is without merit. While neither the statute norlegislative history are helpful in determining this question, the courtsthat have faced it have acknowledged that to deny such benefits to workcommenced before October 1, 1981, would not do justice to the intent ofthe legislation. See _Berman v. Schweiker_, No. 80-C2737 (N.D. Ill.Feb. 16, 1982) and _Photo Date v_. _Sawyer, C.A_. No. 81-2435 (Feb. 22,1982). Therefore, in the instant matter where there are recoverablecosts and fees, those incurred prior to October 1, 1981, may be recovered._FINDINGS OF FACT_1. William B. Hopke Company, Inc. is a corporation that has a net worthless than $5,000,000 and employs less than 500 persons.2. On December 22, 1980, William B. Hopke Company, Inc. was issued aserious citation alleging violation of 29 C.F.R. ? 1926.201(a)(2), awillful citation alleging violation of 29 C.F.R. ? 1926.652(k) (lateramended to add 1926.652(d)), and a citation alleging a nonseriousviolation of 29 C.F.R. 1903.2(a)(1).3. After trial before Judge Sommer a decision was issued dated February16, 1982, and which became a final order of the Commission on March 18,1982 finding that the citations alleging violations of 29 C.F.R.1926.201(a)(2) and 29 C.F.R. 1926.652(d) & (k) were not proved and thecitations were vacated.4. The citation alleging a violation of 29 C.F.R. 1903.2(a)(1) wasaffirmed and no penalty assessed.5. On April 6, 1982, William B. Hopke Company, Inc. filed anapplication with the Commission for attorney’s fees and other expensespursuant to the Equal Access to Justice Act.6. Said application was dismissed without prejudice to refiling byJudge Sommer on July 13, 1982 because of failure to follow filingrequirements in the regulations (29 C.F.R. 2204.22).7. After receipt of the necessary exhibits from the Hopke Company, theCommission on August 9, 1982, vacated the dismissal and remanded theapplication to Judge Sommer for determination.8. Upon remand by the Commission, the undersigned thereupon consideredthe application of the Hopke Company under the Equal Access to JusticeAct on the merits._CONCLUSIONS OF LAW_1. William B. Hopke Company, Inc. is an eligible prevailing party underthe Equal Access to Justice Act as to Citation No. 1 which alleged aviolation of 29 C.F.R. 1926.201(a)(2) and Citation No. 2 which allegesviolation of 29 C.F.R. 1926.652(k) (later amended to add 29 C.F.R.1926.652(d)).2. The Commission has jurisdiction over the parties and subject matter.3. William B. Hopke Company is not entitled to an award of attorney’sfees and costs pursuant to 28 U.S.C. 2412 with regard to Citation No. 2alleging a violation of 29 C.F.R. 1926.652(k) (amended to include 29C.F.R. 1926.652(d)). However, Hopke Company is entitled to attorney’sfees and costs relating to the defense of serious Citation No. 1alleging violation of 29 C.F.R. 1926.201(a)(2). Since the applicationfor fees and costs does not state in detail that portion of the fee andcosts requested which concerns itself solely with the defense of thisitem, the William B. Hopke Company is directed to submit to theundersigned within fifteen days after receipt of this decision anapplication for fees and costs incurred only in defense of 29 C.F.R.1926.201(a)(2). Any other costs and fees shall be excluded. Thestatement submitted shall be fully itemized setting forth the actualtime expended on this item and rate at which fee is computed. TheSecretary may respond to the amended application for fees and costswithin ten days after receipt of a copy thereof.IRVING SOMMERJudge, OSHRCDated: Washington, D.C.————————————————————————WILLIAM B. HOPKE COMPANY,INC.,Petitioner,v.SECRETARY OF LABOR,Respondent.OSHRC Docket No. 81-0206_DIRECTION FOR REVIEW AND REMAND ORDER_Respondent’s petition for discretionary review is GRANTED pursuant toCommission Rule of Procedure 92(a), 29 C.F.R. ? 2200.92(a), and Rule 309of the Commission’s Rules Implementing the Equal Access to Justice Act(EAJA), 29 C.F.R. ? 2204.309.Respondent’s application for fees and expenses was dismissed below forfailure to include a detailed exhibit showing the net worth of theapplicant at the relevant date, as required by 29 C.F.R. ? 2204.202. Respondent subsequently has submitted a detailed statement of net worthand requests in its petition that the judge’s order of dismissal bevacated and the application remanded for consideration on the merits.Upon consideration of the record, the judge’s order of dismissal isVACATED and the case is REMANDED to the administrative law judge toconsider the matters raised by the petition for discretionary review.IT IS SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: August 9, 1982————————————————————————WILLIAM B. HOPKE COMPANY, INC.Petitionerv.SECRETARY OF LABORRespondentDOCKET NUMBER 81-0206_ORDER_On April 6, 1982, William B. Hopke Company, Inc. filed an applicationwith the Occupational Safety and Health Review Commission for attorney’sfees and other expenses pursuant to the provisions of the Equal Accessto Justice Act, Pub. L. No. 96-481, 94 Stat. 2325 and the Commission’simplementing regulations set forth in 29 C.F.R. Part 2204. On May 17,1982, the Secretary filed a motion to dismiss the application and ananswer in opposition thereto.There is no need at this time to go into the merits of the application. The applicant must first qualify as a business \”. . . eligible toreceive an award\” under 5 U.S.C. ? 504(a)(2). The Commission’sregulations require that the applicant provide \”. . . a detailed exhibitshowing the net worth of the applicant\” as of the date specified by ?2204.105(c). The applicant herein has failed to follow the requirementslisted in Subpart B, ? 2204.202 of the regulation. As such, initiallyhis application does not qualify.Accordingly, motion by the Secretary to dismiss the application isgranted without prejudice to a refiling.IRVING SOMMERJudge, OSHRCDATED: July 13, 1982Washington, D.C.FOOTNOTES:[[1]] 5 U.S.C. ?? 504(a)(1) & 504(b)(1)(B); _H.P. Fowler ContractingCorp._, 84 OSAHRC 9\/A2, 11 BNA OSHC 1841, 1843, 1983-84 CCH OSHD ?26,830, p. 34,356 (No. 80-3699, 1984); 29 C.F.R. ? 2204.106(a) (burdenof establishing substantial justification on Secretary).[[2]] 29 C.F.R. ? 2204.106(a). _But_ _see_ H.R. Rep. No. 120, Part I,99th Cong., 1st Sess. 9 (1985) (substantial justification test \”meansmore than merely reasonable\”), _reprinted in_ 1985 U.S. Code Cong. & Ad.News 132, 138.[[3]] H.R. Rep. No. 1418, 96th Cong., 2d Sess. at 14, _reprinted in_1980 U.S. Code Cong. & Ad. News at 4993.[[4]] _See_ _also_ _Hensley v. Eckerhart_, 103 S.Ct. 1933, 1939 & n.7,1940-41 (1983); _Action on Smoking & Health v. C.A.B_., 724 F.2d 211,221 (D.C. Cir. 1984)(applicant may not recover for hours that areexcessive, redundant, or otherwise unnecessary); _Miller v. Hotel &Restaurant Employees & Bartenders Union_, 107 F.R.D. 231, 243 (N.D. Ca.1985).[[5]] See 29 C.F.R. ? 2200.92(d) (1985), Commission Rule 92(d)(partiesmust ordinarily raise issues before judge first); _J.L. Manta_ _PlantServices Co_., 82 OSAHRC 61\/A2, 10 BNA OSHC 2162, 1982 CCH OSHD ? 26,303(No. 78-4923, 1982); _see_ _also_ new Commission Rule 92(c) (Commissionordinarily will not review issues judge did not have opportunity to passupon), 51. Fed. Reg. 32002, 32027 (Sept. 8, 1986), to be codified at 29C.F.R. ? 2200.92(c).[[6]] _See_ the Federal Register Act, 44 U.S.C. ? 1507; _LeaderEvaporator Co_., 76 OSAHRC 61\/D2, 4 BNA OSHC 1292, 1976-77 CCH OSHD ?20,781 (No. 5225, 1976); _George C. Christopher & Sons_, 82 OSAHRC 9\/A2,10 BNA OSHC 1436, 1443, 1982 CCH OSHD ? 25,956, p. 32,531 (No. 76-647,1982)(burden of proving substantive change on employer).[[7]] We of course have no occasion here to pass upon the merits ofHopke’s validity argument or whether the Secretary would have beensubstantially justified in prosecuting the citation after the argumentclearly appeared.[[1\/]] Decision did not fully cover plaintiff’s application inasmuch asadditional information was requested.[[2\/]] A higher amount may be awarded if the agency determines byregulation that an increase in the cost of living or special factorsjustifies a higher fee. 5 U.S.C. ? 504(b)(1)(A). The Commission hasissued no regulation.”