A.A. Beiro Construction Company, Inc.

Plain-English summary

The judge dismissed Beiro's entire Equal Access to Justice Act fee application because appellate review of the underlying Commission order was pending. Beiro and the Secretary agreed that only two citation items were before the court of appeals. The Commission held that its rule requires dismissal only as to the items under appellate review and preserves Commission jurisdiction over fees tied to the remaining items. It set aside the dismissal, reinstated the application in part, and remanded.

Decision snapshot

• Cited standard(s): The official release does not identify the underlying OSHA standards.
• Outcome: Fee-application dismissal set aside; application reinstated for citation items not under appellate review; case remanded.
• Key point: A partial court appeal divests the Commission of an EAJA application only as to the citation items actually under appellate review.

Full text (OSHRC public release)

Docket No. 81-1177

SECRETARY OF LABOR,

Complainant,

v.

A. A. BEIRO CONSTRUCTION COMPANY, INC.,

Respondent.

OSHRC DOCKET NO. 81-1177

DIRECTION FOR REVIEW AND ORDER

An order of Administrative Law Judge William E. Brennan dismissing Respondent
Beiro's application for fees and expenses under the Equal Access to Justice Act, 5 U.S.C.
� 504 ("EAJA"), is hereby directed for review.

Judge Brennan dismissed the application on the basis that review of the
Commission's final order on the adversary adjudication for which fees and expenses are
sought is pending in the United States Court of Appeals. [[1]]  Beiro contends that
the judge's action was improper because some of the citation items on which it prevailed
in the underlying adjudication are not at issue in the pending court proceedings. [[2]]
  Beiro requests that the Commission reinstate its EAJA application as to those
citation items for which court review has not been sought.  The Secretary joins in
Beiro's request.

We agree with the parties that the judge's order of dismissal was erroneous.
  The Commission's rules implementing the EAJA provide as follows:

If review of a Commission decision, or any item or items contained in that
decision, is sought in the court of appeals under section II of the OSH Act, 29 U.S.C.
660, an application for an award filed with the Commission with regard to that decision
shall be dismissed . . . as to the item or items of which review is sought .

29 C.F.R. � 2204.302(c), emphasis added.

This rule clearly intends that in a case such as this, where the appellate
court is asked to review only a portion of the Commission's adjudication, the Commission
retains jurisdiction over an EAJA application as to those items which are not the subject
of court proceedings. [[3]]

Accordingly, the judge's order of dismissal is set aside, Beiro's EAJA
application is reinstated as to those citation items for which no appellate review has
been sought, and this matter is remanded for further proceedings.

RAY H. DARLING, JR.

Executive Secretary

Dated:  FEB 13 1984

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] Donovan v. A.A. Beiro Constr. Co , No. 83-2008 (D.C. Cir. Sept. 23, 1983); A.A.
Beiro Constr. Co. v. OSHRC , No. 83-2053 (D.C. Cir. Oct. 5, 1983).

[[2]] Judge Brennan, in his decision on the merits of the citation items,
vacated six items for failure of proof by the Secretary.  The Secretary withdrew
other items prior to hearing.  The Commission did not direct review of the judge's
decision, and thus it became a final order pursuant to 29 U.S.C. � 661(i).  The
Secretary's brief filed before the court of appeals takes exception only to the judge's
disposition of two of the contested citation items.

[[3]] For this reason, this case is distinguishable from Federal Clearing
Die Casting Co ., 11 BNA OSHC 1157, 1983 CCH OSHD � 26,423 (No. 80-2903, 1983), on
which the judge relied.  In that case, the Commission judge suppressed the
Secretary's evidence and dismissed the citations on the basis that the Secretary's
inspection warrant was invalid.  Thus, the Secretary's petition for appellate review
of that decision placed the judge's entire disposition before the court.