Phoenix Roofing, Inc.

Plain-English summary

This order concerns Phoenix Roofing's application for attorney's fees under the Equal Access to Justice Act. The Fifth Circuit reversed and remanded an ALJ award because the judge found Phoenix Roofing was the prevailing party but did not decide whether the Secretary's position was substantially justified. The Commission returned the case to the same judge to make that finding and issue a decision consistent with it. The Commission also directed that the further proceedings be expedited. The order does not decide the underlying OSHA citations or identify an OSHA standard.

Decision snapshot

• Cited standard(s): None
• Outcome: Attorney-fee proceeding remanded for a finding on whether the Secretary's position was substantially justified.
• Key point: An EAJA fee award requires both prevailing-party status and a finding that the government's position was not substantially justified.

Full text (OSHRC public release)

Docket No. 87-0255

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
States 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 and
remanded a decision of Administrative Law Judge Louis G. LaVecchia that granted, in
substantial part, the employer's application for attorney's fees under the Equal Access to
Justice Act, 5 U.S.C. �504 ("EAJA").

The court noted that, under the EAJA, fees can only be awarded
where the fee applicant was the prevailing party in the underlying action and where the
Secretary has failed to establish that her actions were "substantially
justified.," 5 U.S.C. �504(a)(1). The court noted that while the judge found the
employer to be the prevailing party, he failed to make an explicit finding regarding
whether the Secretary's actions were "substantially justified." Therefore, it
remanded the matter to the commission to determine whether the Secretary established that
her actions were "substantially justified."

For the reasons stated by the Fifth Circuit, we remand this
case to Judge LaVecchia and direct him to find whether the Secretary was
"substantially justified" in issuing and prosecuting the citations against
Phoenix Roofing, and to render a decision consistent with that finding. Pursuant to
Commission Rule 103, 29 C.F.R. �2200.103, we order that further proceedings in this case
be expedited.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G Wiseman

Commissioner

Dated: April 24, 1991

SECRETARY OF LABOR,

Complainant

v.

PHOENIX ROOFING, INC.,

Respondent.

OSHRC

Docket No. 87-0255

Award of Fees & Expenses

Under the Equal Access to

Justice Act

The applicant for an award under the Act described above was
the prevailing party in the proceeding leading up to this application. Its application has
been considered, along with a response in opposition by the complainant. Complete
atomization 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 both
attorney and judge, is of the opinion that the claim for $8,584.33 is fair and equitable
in the circumstances shown. Accordingly, the application 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 is that the
complainant's objections to the initial application were responsible for its filing of a
response, and that the preparation of the response entailed work totaling $825.00 in
value.

The respondent's response to the complainant's objections to
the original application for an award was not necessary, in my opinion, since it was not
requested 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. LaVecchia

Judge, OSHRC

Dated: November 3, 1989

Dallas