Mautz & Oren, Inc.

Plain-English summary

Mautz & Oren was cited for a repeat electrical violation after OSHA found that its construction site used neither ground-fault circuit interrupters nor an assured equipment grounding conductor program. The Secretary later withdrew the citation during Commission review, making Mautz the prevailing party, and Mautz sought $14,195.10 in attorney fees and expenses under the Equal Access to Justice Act. The Commission held that the interagency referral provided a reasonable basis for the inspection even if it did not satisfy internal Field Operations Manual procedures for formal complaints. Although the Secretary had not proved the voltage and amperage needed for the ground-fault-interrupter theory, the absence of an assured grounding program gave a reasonable alternative basis for pursuing the citation. The legal question whether extension cords connected to permanent wiring created a temporary wiring system was unsettled, and a prior final citation under the same standard reasonably supported the repeat classification. Because the Secretary's overall position was substantially justified, the Commission denied the fee application.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.404(b)(1)(i), 1926.404(b)(1)(ii), and 1926.404(b)(1)(iii)
• Outcome: Application for $14,195.10 in attorney fees and expenses denied.
• Key point: A prevailing employer does not automatically receive EAJA fees when the Secretary withdraws a citation; the question is whether the government's position had a reasonable basis in fact and law.

Full text (OSHRC public release)

                                          UNITED STATES OF AMERICA
            OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                            1825 K STREET NW
                                                41H FLOOR
                                        WASHINGTON D.C 2ooo6- 1246


                                                                                                FAX:
                                                                                                C&vll0~6&&4008

SECRETARY OF LABOR, ..

                       Complainant,

                                                        .
            V.                                          .       OSHRC Docket No. 894366
                                                        .
                                                        .

MAUTZ & OREN, INC.,
..

                       Respondent.                      ..
                                                        .



                                               DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:
Mautz & Oren, Inc. (“Mautz”) seeks attornevs’
d fees and other expenses under the
Equal Access to Justice Act (“EAJA”), 5 U.S.C. 5 504.’ t’or the costs incurred in defending
against a citation issued by the Secretary of Labor. For the reasons set forth below, we

affirm Administrative Law Judge James D. Burroughs’ decision and deny Mautz’ application
for an award under the EAJA.
I. Background

    Mautz was the general contractor on a project located in Salem, Illinois, where it was

engaged in the restoration and expansion of a sewer treatment plant for the city. This work
wasperformed under a federallv funded grant administered by the Environmental Protection
Agency (“EPA”). The EPA ut iked the Army Corps of Engineers (“Corps”) to provide field
surveillance and technical assistance in the construction phase of the operation. A project

’ 5 U.S.C. 8 504(a)(l) provides, in relevant part:

    An agency that conducts an adversary adjudication shall award, to a prevailing party other
    than the United States, fees and other expenses incurred by that party in connection with that
    proceeding, unless the adjudicative officer of the agency finds that the position of the agency
    was substantially justified or that special circumstances make an award unjust.

2

engineer employed by the Corps visited Mautz’ worksite in March 1989 and observed that
extension cords plugged into receptacles inside two buildings did not have ground fault
circuit interrupters (“GFCI’s”). He notified by letter the Occupational Safety and Health
Administration (“OSHA”) area office of possible safetv. violations. An OSHA compliance
officer conducted a referral inspection* of the worksite on March 15, 1989 and determined
that Mautz used neither GFCI’s nor an assured equipment grounding conductor (“AEGC”)
program at the site. Mautz’ employees had used pww ttwis connected to an extension cord

on the day prior to the compliance officer’s inspectIon.
As a result of the inspection, Mautz was iswed it citation alleging a repeat violation
of the Occupational Safety and Health Act of 1970. 3 L.S.C. $5 651-678 (“the Act”). The
only citation item, Repeat Citation No. 1, Item 1, reads as follows:

    29 C.F.R. 5 1926.404(b)(l)(i):       Employer did not use either ground-fault
    circuit interrupters as specified in paragraph (b)( l)(ii) of this section, or an
    assured equipment grounding conductor program as specified in paragraph
    (b)(l)(iii) of this section to protect employees on construction sites:

    In the filter building and behind the sludge pump room, the employer did not
    use either ground fault circuit interrupters or an assured equipment grounding
    conductor program on temporary wiring systems created by using extension
    cords on a fixed permanent wiring system exposing employees to the hazard
    of electric shock.

The Secretary issued the citation as a repeat violation because Mautz had been cited-for a

violation of the same standard in 1988. As Mautz did not contest the 1988 citation, it had
become a final order of the Commission.
Section 1926.404(b) provides:
5 1926.404 Wiring design and protection.

    (b) Branch circuits-- ( 1) Crowd-fault protectiow-( i) General. The employer
    shall use either ground fault circuit interrupters as specified in paragraph
    (b)(l)(ii) of this section or an assured equipment grounding conductor
    program as specified in paragraph (b)( l)(iii) of this section to protect
    employees on construction sites. These requirements are in addition to any
    other requirements for equipment grounding conductors.

’ It is termed a “referral” and not a “complaint” because “complaints”are normally generated born employees
or ex-employees from the private sector, while “referrals” are inter-agencycomplaints from within the
government.
 3

    (ii) Ground-fault circuit irttemrpters. All 120.volt, single-phase, 15. and 20.
    ampere receptacle outlets on construction sites, which are not a part of the
    permanent wiring of the building or structure and which are in use by
    employees, shall have approved ground-fault circuit interrupters for personnel
    protection. . . .
    (iii) Assured equipment grounding conductor program. The employer shall
    establish and implement an assured equipment grounding conductor program
    on construction sites covering all cord sets, receptacles which are not a part
    of the building or structure, and equipment connected by cord and plug which
    are available for use or used by employees.
    Mautz contested the citation.         A hearing was held before Administrative           Law Judge

Edwin G. Salyers on October 5, 1989. In his decision, the judge found that Mautz did not
follow the provisions of both 29 C.F.R. 5 1926.404(b)(l)(“)11 re q uiring the use of GFCI’s, and
29 C.F.R. 8 1926.404(b)( l)(“‘)
111re q uiring the establishment and implementation of an AEGC
program. The judge also found that the violation was repeated. He affirmed the citation
and assessed the proposed penalty of $980. However, the judge did not address Mautz’
argument that the Secretary failed to prove a violation of section 1926.404(b)(l)(ii) because
there was no evidence in the record regarding the voltage and amperage of the receptacles .
at issue. Section 1926.404(b)( l)(ii) applies to 120.volt electrical systems with IS- and 20-
ampere receptacle outlets.
Niautz petitioned the Commission for discretionary review of Judge Salyer’s decision.
It was granted on June 5, 1990. Mautz filed a brief in support of its position on February 5,
1991. The Secretary then asked for two extensions of time in which to file his brief. The
Commission granted the first extension, but denied the second. On April 2, 1991, the
Secretary filed a notice of withdrawal of the citation, citing “prosecutorial discretion.“3 By
order dated April 18, 1991, the Commission acknowledged receipt of the Secretary’s notice
of withdrawal and set aside Judge Salyers’ decision and order affirming the citation.

In his brief before the Commission regarding the EAJA issue, the Secretary notes that he exercised his
prosecutorial discretion to withdraw the citation “based on an interpretation of the cited regulations as
addressing only 120.volt electrical systems.” The Secretary argued that he was substantially justified in
proceeding on the merits of his citation, as section 1926.404(b)(l)(iii) “on its face may reasonably be read to
apply to all electrical systems regardless of voltage.” The Secretary argued that the fact he “subsequently
elected to dispose of the case based on a different interpretation does not render unreasonable [his] earlier
interpretation, which had been formulated at the field level in the absence of a definitive national office
interpretation.”
 4

    On May 17,1991, Mautz filed an application for award of attorneys fees and expenses

under the EAJA. Judge Salyers granted Mautz’ motion for change of judge, and the
application was reassigned to Administrative Law Judge James D. Burroughs.
On December 11, 1991, Judge Burroughs issued his decision. The judge noted that
the Secretary did not contest Mautz’ eligibility and found that Mautz was an eligible
applicant under the EAJA. However, the judge found that the Secretary’s position was
“substantially justified” and denied Mautz’ application for an award. Pursuant to 29 U.S.C.
6 661(j) and 29 C.F.R. 5 2204.309, Mautz petitioned the Commission for review of Judge
Burroughs’ decision. Mautz now requests a total award of $14,195.10 ($10,543.50 for its
work on the merits, $1,755.00 for its EAJA petition, and $1,896.60 for its appeal of the
judge’s EAJA decision).
II. Standard of Review and Burden of Proof
A judge’s decision regarding an application for an award under the EAJA is reviewed
by the Commission de now. Cewal Brass Mfg.Co., 14 BNA OSHC 1904, 1905, 1987-90
CCH OSHD lI 29,144, p. 38,955 (No. 86-978, 1990) (consolidated cases). To determine de
rtovo whether the Secretary proved by a preponderance of the evidence that his position
. was
substantially justified, the Commission must reexamine the underlying merits of the case.
Although the outcome of the case on the merits mav4 be some evidence of whether the
Government’s position was substantially justified, it is not dispositive of the issue. Hadden
v. Boweq 851 F.2d 1266, 1267 (10th Cir. 1988). “Conceivably, the Government could take
a position that is not substantiallv 4 justified, yet win; even more likely, it could take a position
that is substantially justified, yet I~~se.” Pierce v. Underwood, 487 U.S. 552, 569 (1988).
Therefore, the fact that Judge
L Salvers
d found in favor of the Secretary on the merits does not
automatically determine that his plsttron was substantially justified within the meaning of the
EAJA.
The test of whether the Secrctarv’s action is substantially justified is essentially one
of reasonableness in law and fact. Hock& Valley Steel Erectors, Inc., 11 BNA OSHC 1492,
1983-84 CCH OSHD ll 26,549 (No. 80-1463, 1983). The Secretary’s position must be
“ ‘justified in substance or in the main’--that is, justified to a degree that could satisfy a
reasonable person.” Gatson V. Bowen, 854 F.2d 379, 380 (10th Cir. 1988) (citation omitted):
 5

        [T]he reasonableness test breaks down into three parts: the government must
        show “that there is a reasonable basis . . . for the facts alleged . . . that there
        exists a reasonable basis in law for the theory it propounds; and that the facts
        alleged will reasonably support the legal theory advanced.”

Id. (citation omitted).
        In his decision on the EAJA application, Judge Burroughs determined                      that, despite
the affirmance of the citation by Judge Salyers, Mautz was the prevailing party for purposes
of the EAJA proceeding4 and that Mautz was an eligible applicant under the EAJA.’                           The
Secretary does not dispute that Mautz was the prevailing party or that it is an eligible
applicant.   The remaining issue is whether the Secretary demonstrated                 that his position was
substantially justified.
        Mautz argues that the Secretary was not justified in either issuing the citation or
enforcing it through litigation.        Under Commission Rule 2204.106(a), the position of the
Secretary includes his litigation position as well as his action prior to the litigation.                   We
therefore    review whether the Secretary was substantially justified in inspecting and citing

. Mautz, as well as in pursuing the citation.
III. Did the Judge err in denying Mautz’ application for an
award under the EAJA?
A. Validity of the OSHA inspection.

                                                       1.

        Mautz argued before Judge Burroughs that the Secretary failed to follow the proper
procedure     after receiving the letter from the Corps’ project engineer.                It argued that the
letter was a nonformal complaint, and that the Field Operations Manual (“FOM”) provides
that in responding to nonformal complaints, the Area Director shall notify the employer by
letter of the complaint against it and allow the employer to respond.               Mautz relies on OSHA




4 The judge noted that the Secretary’s withdrawal of the citation caused Judge Salyers’ decision and order to
be set aside, which resulted in Mautz’ status as a prevailing party.

5 Under Commission Rule 2204.105(b)(4), an eligible corporate employer is “[a]ny . . . ‘corporation . . that
                                                                                                        l




has a net worth of not more than $7 million and employees not more than 500.” Mautz submitted an
independent auditor’s report as part of its petition for attorneys fees that establishes its net worth to be less
than $7 million. The petition before the judge also shows that Mautz employed 29 employees at the time the
citation was issued.

6

Instruction CPL 2.45A CH-11, Field OperationsManual, Chapter IX, section A.&a (Oct. 1,
1986). Mautz contended that this procedure was not followed in the present case, because
after receiving the project engineer’s letter, the Area Director scheduled an inspection.
Judge Burroughs found that the FOM grants the Area Director the discretion on how
to proceed when the referral identifies a hazard of a potentially serious nature, and that he
can schedule an inspection if necessary. The judge relied on OSHA Instruction CPL 2.45A
CH-12, Field OperationsManual, Chapter IX, section B.3.e (Sept. 21, 1987). The judge
noted that “[i]n any event, the fact that he conducted an inspection rather than notify the
employer by letter is no basis for a dismissal of the citation” because the FOM guidelines
“do not have the force and effect of law nor do they accord important procedural or
substantive rights to individuals.” FMC Corp., 5 BNA OSHC 1707, 1710, 1977-78 CCH
OSHD ll 22,060, p. 26,573 (No. 13155, 1977).
On review, in addition to renewing its arguments made before Judge Burroughs,
Mautz also argues that under Morton v. Rub, 415 U.S. 199 (1974) and NLRB v. Unifemme,
570 F.2d 230 (8th Cir. 1978), the Secretary’s failure to follow the procedures set forth in the
FOM warranted vacating the citation. Mautz attempts to contrast FMC Coyp. with the
present case by arguing that FMC Corp. did not involve the procedural rights of the
respondent, but rather was concerned with whether a violation was properly classified as
willful or repeated.

      Mautz’ reliance on the FOM is misplaced. The FOM’s primary purpose is not to give

employers particular rights or defenses in adjudicatory proceedings. See Del Monte Corp.,
9 BNA OSHC 2136,2140,1981 CCH OSHD ll 25,586, p. 31,914 (No. 11865,1981)(a citation
should not be dismissed due to the Secretary’s failure to follow the FOM’s procedures
because the purpose of the manual’s guidelines is to promote agency efficiency, not to
accord important procedural or substantive rights to individuals). More specifically, we have
held that the Secretary has the statutory authority under section 8(a) of the Act to conduct
inspections in response to non-formal complaints and can inspect without regard to the
formality requirements of section 8(f) of the Act. Adams Steel Erection, Inc., 13 BNA OSHC
1073, 1079, 1986-87 CCH OSHD 1 27,815, p. 36,404 (No. 77-3804, 1987). Therefore, we
 7

find that the Secretary was within his rights in scheduling an inspection after receipt of the
project engineer’s letter, despite it being a non-formal complaint.
The cases relied on by Mautz are inapposite. In Mortort, the Supreme Court found
that the Bureau of Indian Affairs (BIA) must follow its own substantive procedures in
deciding whether an applicant should receive general public assistance, and that “[bjefore
the BIA may extinguish the entitlement of these otherwise eligible beneficiaries, it must
comply, at a minimum, with its own internal procedures.” Morton, 415 U.S. at 235. As
Judge Burroughs noted, the procedures outlined in the FOM do not accord important
substantive rights to individuals. In Ultifemme; the court did not hold that the NLRB
“should have followed the procedures established in its Field Operations Manual,” as Mautz
claims in its brief. In fact, the court noted that “[t]he NLRB Field Manual does not contain
binding procedural rules. It is intended to provide procedural and operational guidance to
the NLRB staff.” Unifemme, 570 F.2d at 233 n.2. FMC Cop. may have only involved the
characterization of a violation, but that does not dilute the effect of the rule on Mautz’
claim.
B. 29 C.F.R. 8 1926.404(b)( l)(ii) and GFCI’s

                                                         i.
     Judge Burroughs found that section 1926.404(b)( l)(i) gives the employer a choice of

complying with subsequent paragraph (b)(l)(ii) by using GFCI’s, or with subsequent
paragraph (b)(l)(iii) by having an AEGC program. The judge noted that paragraph
(b)(l)(ii) applies to 120~volt single-phase, 15. and 20.ampere receptacle outlets. The judge
agreed with Mautz that the “Secretary failed to adduce a single iota of evidence regarding
the voltage and amperage of the receptacle outlets at issue.” He found that the Secretary
failed to meet his burden of proving a violation of paragraph (b)(l)(ii), while noting the
Secretary’s contention that he “was never concerned with proving that the voltage was 120
volts as required by the first part of the cited [standard] because [he] was proceeding under
the second part of the standard which on its face is applicable to all cord sets and
receptacles regardless of their voltage.” In reaching this decision, the judge determined that
“[a]n objective reading of the transcript makes clear that the primary theory of the
Secretary’s case was that Mautz violated paragraph (b)(l)(ii) and that the theory of an
 8

alleged violation of paragraph (b)( l)(iii) was a fall-back position.” On review, Mautz argues
that the judge did not address its argument that the Secretary w.as not substantially justified
in refusing to withdraw all or part of the citation after failing to meet his burden of proof
at the hearing.
ii.
The Secretary acknowledges his failure to introduce into the record evidence that
120=volt, single-phase, 15. and 20.ampere receptacle outlets were involved. However, the
Secretary’s citation was for a violation of (b)(l)(i), got for a violation of (b)(l)(ii), as Mautz
appears to argue. We agree with the judge that the theory of an alleged violation of
paragraph (b)( l)( 111
.**)was not the main theory advanced at the hearing. However, we find
that the Secretary was substantially justified in pursuing a violation of (i) as long as there was
evidence that Mautz did not meet the requirements of (iii), which requires an AEGC
program but makes no reference to voltage.
C. 29 C.F.R. 5 1926.404(b)(l)(iii) and the AEGC program
.
i.
Judge Burroughs noted that this standard applies to “all cord sets” and to “equipment
connected by cord and plug.” The judge found that “because it is undisputed that Mautz
was not using GFCI’s, Mautz was required to have an assured equipment grounding
conductor program.” However, the citation and complaint both allege that Mautz failed to
have a grounding program “on temporary wiring systems erected by using extension cords
on a fixed permanent wiring system.” There is no dispute that the receptacle outlets into
which the extension cords were plugged were part of the permanent wiring of the building.
The Secretary contends that where tools are powered by means of “extension cords,” the
receptacles at the end of the cords are receptacles which are not part of the permanent
wiring of the building or structure, and that they therefore become a substitute for the fixed
wiring. Mautz contends that using an extension cord to connect a power tool to a receptacle

outlet which is part of the permanent wiring system does not constitute temporary wiring.
Judge Burroughs found that the question of whether the use of extension cords in
these circumstances creates a temporary wiring system involved a legal interpretation. He
noted two Commission judges’ decisions, both involving section 1926.404(b)(l)(i), that
 9

reached different conclusions on the issue of whether an extension cord is temporary wiring6
and found that, since the law on the question was in its formative stages, the Secretary was
substantially justified in proceeding on the theory that Mautz was in violation of paragraph
(b)(l)@) for failing to have an AEGC program.
On review, Mautz argues that it “complied with the substantive requirements of the
AEGC standard” because its job superintendent visually inspected the extension cords on
a regular basis, tested them with a continuity checker and removed defective and suspect
cords from service. Mautz stated in its brief that its “failure to keep written records of its
cord testing was at most a de mirtimisviolation of Section 1926.404(b)(l)(iii).” Mautz
further argues that the Secretary’s position that the precautions it took did not meet the
AEGC program requirements in 29 C.F.R. 5 1926.404(b)(l)(iii) was not substantially
justified.
ii.
As Judge Burroughs correctly noted, the Commission has not yet decided whether the
use of extension cords in these circumstances creates a temporary wiring system. As a result,
there is no basis for finding that the Secretary was in error when he contended that
conductors at Mautz’ workplace required compliance with section 1926.404(b)( l)(iii). We
therefore find that he was substantially justified in pursuing the citation. The fact that
Mautz admits noncompliance with the standard in its brief further supports our finding that
the Secretary was substantially justified in pursuing his complaint.

6 In Levi &se Co., 14 BNA OSHC 2047 (No. 89-584, EM), the judge found that an extension cord was
considered temporary wiring even though the receptacle it was plugged into was part of the permanent tiring
of the structure. In DKS Cons&, Inc., 14 BNA OSHC 1855,1987-90 CCH OSHD ll29,095 (No. W-91, lm),
the judge found that an extension cord was considered part of the permanent wiring of the building because
it was plugged into a receptacle which was part of the permanent wiring of the structure.
 10

                      D. The 64Repeat” designation               of the violation



    As noted above, in 1988 Mautz              was issued an other-than-serious                citation for a

violation of 29 C.F.R. 5 1926.404(b)(l)(i).’ The citation became a final order of the Review
Commission because it was not contested by Mautz. Judge Burroughs found that the
Secretary established a prima facie repeat violation under fotlatch Cop., 7 BNA OSHC
1061, 1979 CCH OSHD II 23,294 (No. 16183, 1979), by showing that, at the time of the
alleged repeat violation, there was a Commission final order against the same employer for
a failure to comply with the same standard. Judge Burroughs found that Mautz had not
presented sufficient evidence to refute the prima facie case established by the Secretary, and
that the determination of a repeat violation was correct under Commission precedent.
On review, Mautz argues that the citation at issue involved an extension cord, while
the prior citation did not involve an extension cord. Mautz cites the testimony of its
president at the learing. However, there is no evidence in the record that the prior
violation did not nvolve an extension cord. The president only admitted that the prior
violation involved temporary wiring that did not have circuit interrupters.

    Recently,    the Commission       reaffirmed          the holding     in Potlatch that the Secretary

establishes a prima facie case of similarity by showing that both violations are of the same

standard, as long as the standard at issue is not a general standard. Edward Joy Co.,

’ The citation issued in 1988 was as follows:

    29 C.F.R. 8 1926.404(b)(l)(i): Emplover did not use either ground-fault circuit interrupters
    as specified in paragraph (b)(l)(ii) &f this section, or an assured equipment grounding
    conductor program as specified in paragraph (b)(l)(iii) of this section to protect employees
    on construction sites:

    In the new garage area, there [were) no ground fault circuit interrupters on the temporary
    wiring system, nor was an assured equipment grounding conductor program in use, exposing
    employees to an electric shock hazard.

11

15 BNA OSHC 2091, 1993 CCH OSHD ll 29,938 (No. 914710, 1993).8 Here, Mautz did
not dispute that it had previously been cited for violating the same standard and that the
prior citation had become a final order.
We do not need to determine whether the alleged violation is properly classified as
repeated. Instead, the issue is whether the Secretary was substantially justified in classifying
the alleged violation as repeated. Since Mautz did not rebut the Secretary’s showing of

similarity, we find that the Secretary was substantially justified in classifying the alleged

violation as repeated.
IV. Order

     Accordingly,    we find that Judge Burroughs          did not err in denying     Mautz’ application

for an award of fees and expenses under the Equal Access to Justice Act.
.

                                                                 Lhalrman




                                                                 Commissioner




                                                                 @iL?&aLA
                                                                 Velma Montoya
                                                                 Commissioner

Dated: March 8. 1993

8 In the absence of evidence that both violations are of the same standard, the Secretary must present other
evidence that the violations are substantially similar. Evidence that the violations involve similar hazards
would be relevant. PotlcrtchCop., 7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,172.
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006- 1246

                                                                                           FAX
                                                                                           COM (202) 634-4008.
                                                                                           FTS 1202) 634-4008


                                   ..

SECRETARY OF LABOR, ..

         Complainant,

    v.                                        Docket       No.      89-1366

MAUTZ & OREN, INC., ..
..
Respondent. ..

                        NOTICE OF COMMISSION                 DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
March 8.1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 5 660.

                                              FOR THE COMMISSION

March 8. 1993
Date.
/tii+
%i,lhtL+
Ray H. Darling, Jr.
Executive Secretary
Docket No. 89-1366

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., NW.
Washington, D.C. 20210

John H. Secaras, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
Room 844
230 South Dearborn St.
Chicago, IL 60604

Andrew J. Martone
Michael J. Bobroff
Husch & Eppenberger
100 N. Broadway, Suite 1300
.St. Louis, MO 63102

R. Stephen Carroll, Esq.
Reed, Smith, Shaw & McClay
1200 - 18th Street, N.W.
Washington, D.C. 20036

Stanley M. Schwartz
Administrative Law Judge
Occupational Safety and Health
Review Commission
Federal Building, Room 7B11
1100 Commerce Street
Dallas, TX 75242-0791
 FAX.
COM (232) 634 - 4033
FTS 634-4038

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 89- 1366
MAUTZ & OREN, INC.
Respondent.

                      NOTICE OF DOCKETING
               OF ADMINISTRATIVE LAW JUDGE’S DECISION
   The Administrative Law Judge’s Report in the above referenced case was

• docketed with the Commission on December 19, 1991. The decision of the Judge
  will become a final order of the Commission on January 21, 1992 unless a
  Commission member directs review of the decision on or before that date. ANY
  PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
  COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
  Any such petition should be received by the Executive Secretary on or before
  January 8, 1992 in order to ermit sufficient time for its review. See
  Comssron Rule 91, 29 C. 8 .R. 2200.91.
  . All further pleadings or communications regarding this case shall be
  addressed to:
  Executive Secretary
  Occupational Safety and Health
  Revrew Commission
  1825 K St. N.W., Room 401
  Washington, D.C. 20006-1246

Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued by the Commission. then the Counsel for
Regional .Trial Litigation will represent the Department of Labor. hY party
havmg questions about review rights may contact the Co lmmission’s Executive
Secretary or call (202) 634-7950.
n
/IQ& THE COMMISSION

Date: December 19, 1991
DOCKET NO. 894366

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH.
Room S4004
200 Constitution Ave., N.W.
Washington, -D.C. 20210

John H. Secaras, Esq. -‘-
Re ional Solicitor
0 fPice of the Solicitor, U.S. DOL
230 South Dearborn St.
Chicago, IL 60604

Michael J. Bobroff, Esq.
Andrew J. Martone, Esq.
Husch, E penberger, Donohue,
Cornfel B & Jenkens
100 North Broadwa , Suite 1300
St. Louis, MO 6310 5

R. Stephen Carroll, Esq.
Reed, Smith, Shaw & McClay
1200 - 18th Street, N. W.
Washington, DC 20036

Stanley M. Schwartz
Administrative Law Jud e
Occupational Safety an d Health
Review Commissron
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242 0791

00103278099 : 05
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E., SUITE 240
ATLANTA, GEORGIA 30309-3119 .

PHONE: FAX:
COM (404)347-0113
COM (404)347-4197
F-T-S257-4086 FT'S257-0113

                                                        ..

SECRETARY OF LABOR, ..
..
Complainant, ..
..
.
V. . OSHRC Docket No. 89-1366
.
.

MAUTZ & OREN, INC., ..
..
Respondent.

Appearances:

       Miguel J. Carmona, Esquire                        Michael J. Bobroff, Esquire
               Office of the Solicitor                           Husch, Eppenberger, Donohoe,
               U. S. Department of Labor                         Cornfeld & Jenkins
               Chicago, Illinois                                 St. Louis, Missouri
                       For Complainant                                   For Respondent

Before: Administrative Law Judge James D. Burroughs

                                  DECISION AND ORDER


       Mautz & Oren, Inc. (“Mautz”) seeks attorneys’ fees and other expenses, pursuant to

the Equal Access to Justice Act (“EAJA”), 5 U.S.C. 5 504, 29 C.F.R. 5 2204.101, et
seq.,’ incurred as a result of its defense against a citation issued by the Secretary on
February 22, 1989. The EAJA applies to adversary adjudications before the Commission
under 0 10(c) of the Occupational Safety and Health Act of 1970, 29 USC. 8 651, et seq.,
(“Act”).

                                      Procedural Historv


    Mautz was the general contractor on a project located in Salem, Illinois, where it was

engaged in the restoration and expansion of a sewer treatment plant for the city. On
March 7, 1989, a project engineer employed by the U. S. Army Corps of Engineers, Elvin
Pauls, made a referral to the Occupational Safety and Health Administration (“OSHA”),
notifying that agency of possible safety violations that he had observed on the sewer., project.
On March 1 and March 3, 1988, Pauls observed an extension cord at the rear of the sludge t
,
pump building that was connected to the electric power and was available for use. Altho
there were damp conditions in the area, Mautz was not using ground fault circx&.~~
interrupters (“GFCIs”) at the site (Tr. 25). In response to Pauls’ letter, OSHA Compliance
Officer John Giefer conducted an inspection on March 15, 1989. As a result of the
inspection, Mautz was issued a citation alleging a repeat violation of 29 C.F.R. 6
1926.404(b)(l)(i) for failing to use either GFCIs or an assured equipment grounding
conductor program (“AEGC program”), to protect its employees on the sewer project.
Mautz contested the citation. A hearing was held in the matter on October 5, 1989,
presided over by Judge Edwin G. Salyers. In a decision issued on April 25, 1990, Judge
Salyers affirmed the citation and assessed a penalty of $980.00. Mautz petitioned the
Commission for discretionary review, which was granted on June 5,199O. Mautz filed a brief

’ The EAJA took effect on October 1,198l. It was enacted as a three-year experiment in the allocation of
the costs of litigation involving the government. The Act contained a “sunshine provision” that repealed it
on October 1, 1984, except that the Act continued to apply through final disposition of any adversary
adjudication initiated before the date of repeal. The Act was allowed to expire pursuant to the “sunshine
provision” but was amended and re-enacted into law on August 5, 1985. Public Law 99-80, 99 Stat. 183
(1985). The re-enacted EAJA makes clarifying technical and substantive amendments to the original EAJA.

’ Compliance Officer Giefer had previously conducted an inspection of the project on May l&1988, which
resulted in the issuance of a serious citation and “other” citation to Mautz on May 24, 1988.

                                                2

in support of its position on February 5, 1991. The Secretary did not file a brief in support
of her position, but on April 2, 1991, filed a notice of withdrawal of the citation citing
“prosecutional discretion.” By order dated April 18,1991, the full Commission acknowledged
receipt of the Secretary’s notice of withdrawal and set aside Judge Salyers’ decision and
order affirming the citation.
On May 17, 1991, Mautz filed an application for award of attorneys’ fees and
expenses under the EAJA 3. On June 27, 1991, Judge Salyers granted Mautz’s motion for
change of judge, and the application was reassigned to this Judge. The Secretary filed an
answer to Mautz’s application and Mautz filed a reply to the answer. United Technologies
Corporation filed an amicus curiae brief concerning the Secretary’s answer to Mautz’s
application.
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One of the primary goals of the EAJA is to encourage parties ’ to
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unreasonable Government action; reimbursement, however, is not to be routinely -d&I.
to a prevailing party. An award is to be made to an eligible prevailing party only if the
agency is found to have acted without substantial justification and there are no special
circumstances which make the award unjust.4 While an applicant has the burden of proving
eligibility, the agency has the burden of demonstrating that fees should not be awarded in
a given case. Dole v. Phoenix Roofing, Inc., 922 F.2d 1202, 1209 (5th Cir. 1991). “The
standard . . . should not be read to raise a presumption that the Government position was

3 The fees and expenses are sufficiently itemized to comply with the requirements of 0 2204.203 of the
Commission’s rules pertaining to the EAJA

4 Section 504(a)(l) of the Act, 5 U.S.C. 8 504(a)(l) provides:

     An agency that conducts an adversary adjudication shall award, to a prevailing party other
    than the United States, fees and other expenses incurred by that party in connection with that
    proceeding, unless the adjudicative officer of the proceeding finds that the position of the
    agency was substantially justified or that special circumstances make an award unjust.
    Whether or not the position of the agency was substantially justified shall be determined on
    the basis of the administrative record, as a whole, which is made in the adversary adjudication
    for which fees and other expenses are sought.
                                                                  _-        .. -
                                                  3

not substantially justified, simply because it lost the case.” H. R. Rep. No. 1418,96th Cong.,
2d Sess. at 10, 18, 1980 U. S. Code Cong. & Admin. News at 4989,4997.

                              Mautz Was the Prevailing Party


   Despite the affirmation of the citation in Judge Salyers’ decision and order, Mautz

was the prevailing party for the purposes of this proceeding because the Secretary withdrew
the citation while the matter was on review by the Commission.
Although the term is not defined in the EAJA an applicant is considered to
be the “prevailing party” for the purpose of attorneys’ fees statutes if it has
succeeded on any of the significant issues involved in the litigation, and if, as
a result of that success, the applicant has achieved some of the benefit it
sought in the litigation.

KD.K UpsetForgery, Inc., 12 BNA OSHC 1856,1857, 1986 CCH OSHD ll27,612 (No. 8$-
P
1932, 1986).
In KDX, the Commission found that the employer was the prevailing party when
the Secretary withdrew her citation prior to the scheduled hearing. “First, K.D.K.‘s primary
purpose in filing its notice of contest was to have the citation vacated. That purpose has
been achieved. Second, tangible benefits have accrued to K.D.K. as a result of the
withdrawal.” Id., 12 BNA at 1858. The Commission goes on to list the benefits accrued by
K.D.K., which include the avoidance of compliance
* with an abatement order and avoidance
of paying a penalty.
The Secretary’s withdrawal of the citation caused Judge Salyers’ decision and order
to be set aside, which is a success for Mautz. It is a prevailing party. The Secretary does
not dispute this determination.

                                   Criteria for Eligibility


   The prevailing     party in an EAJA         case must meet        the established    eligibility

requirements before it can be awarded attorneys’ fees and expenses. Commission Rule
2204.105(b)(4) re q uires that an eligible corporate employer be “[alny . . . corporation

                                              4

. . . that has a net worth of not more than $7 million and employees not more than 500
employees . . .”
Mautz submitted an independent auditor’s report as part of its petition for attorneys
fees that establishes its net worth to be less than $7 million. The petition states that at the
time the citation in this case was issued, Mautz employed 29 employees. The Secretary does
not dispute either of these factual representations. Mautz is an eligible applicant under the
EAJAO

                                 Substantial Justification


     Where, as here, the non-governmental       party has clearly “prevailed,” the burden is on

the Government to demonstrate that its position was “substantially justified.” Commission
Rule 8 2204.106. Whether an agency’s position is substantially justified will, of course,
depend upon the circumstances of the particular case. The Secretary points to the decisidn
of Judge Salyers as proof that her position was substantially justified. Judge Salyers he&d
all the evidence, considered all arguments raised by Mautz, and concluded that there was
a violation of 29 C.F.R. 0 1926.404(b)(l)(i). In reaching his decision, Judge Salyers
determined the facts and concluded that there was relevant and credible evidence of a
quality and quantity that justified his determination.
While the EAJA uses the words “substantially justified,” it nowhere defines what was
intended by their use. The phrase “substantially justified” has a recognized meaning in law,
albeit sometimes nebulously defined. Generally speaking, the phrase refers to a conclusion
arrived at by a process of reasoning which is a rational and logical deduction from facts
admitted and established by the evidence of record. Evidence must be of ponderable legal
significance, reasonable in nature, credible and rationally related to the facts essential to
resolving the issues in dispute. The evidence need not be uncontradicted. If reasonable
people may fairly differ as to whether certain evidence establishes a fact in issue, it must be
deemed substantial. “Substantially justified” means that the supporting evidence was more
than a scintilla but less than a preponderance. The evidence must create more than a mere
suspicion of the existence of facts sought to be established; it must establish a substantial

                                              5

basis of fact from which the issue can be reasonably inferred. A legal position is not
substantially justified when it is based on supposition or conjecture. Evidence is substantial
if it is the kind of evidence a reasonable mind might accept as adequate to support a
conclusion. John K McGruth Cop v. Hughes, 264 F.2d 314 (2d Cir. 1959).
Whether the Secretary was “substantially justified” in this matter must be based on
the same evidence considered by Judge Salyers in reaching his decision? This raises the
question of what weight must be accorded his decision. The nature and extent of any review
of his decision must be limited in scope. In determining the merits of the E&IA application,
his decision is not in issue. The decision on the application must be based on the facts of
record, and those facts must reflect that the Secretary was substantially justified in
proceeding with the matter in order to deny payment of fees and expenses. It is immat~riak
as to how Judge Salyers decided the case; facts considered by him and argumen& amed
by him, however, need not be routinely rejected since he had the only opportunik to

the demeanor of the witnesses and was in the best position to weigh their CT
addition, it is unnecessary to make a determination of the appropriate interp
standard in considering the merits of the application. Quite obviously, the parti= disagree ‘+ *
on what the standard requires. The question for determination involves whether the
Secretary was substantially justified in proceeding with her position.
Mautz contends that the Secretary was not substantially justified in bringing her
complaint against the company. Mautz advocates four reasons why it believes the Secretary
was not justified:

      (1)     OSHA’s failure to follow the procedure set out in its Field Operation
      Manual (“FOM”) in investigating Elvin Pauls’ referral letter, was not
      substantially justified;

      (2)     The Secretary was not substantially justified in alleging that Mautz
      violated 29 C.F.R. 9 1926.404(b)( l)(ii);

5 The Commission rules specify that an award shall be made on the basis of the written record except that on
request of the applicant or the Secretary, or the Judge’s own initiative, the Judge may order further
proceedings as necessary. 29 C.F.R. 0 2204.307. Neither party requested further proceedings.

                                                 6

(3) The Secretary was not substantially justified in alleging that Mautz
violated 29 C.F.R. 6 1926.404(b)(l)(iii); and

      (4)      The Secretary’s classification of the alleged violation    as a repeat
      violation was not substantially justified.


                              Validitv of OSHA Inspection


      Mautz has argued strenuously throughout this litigation that the Secretary improperly

handled the follow-up procedure after receiving Pauls’ letter. This argument is based on its
classifying the referral as a nonformal complaint. The Field OperationsManual (“FOM”)
provides that the Area Director should notify the employer by letter of the complaint against...
it and allow the employer to respond where the referral involves a nonformal complainL
A
Paragraph A.&a. of Chapter IX. If the employer responds that the appropriate corre- ,
action has been taken, the case file is to be closed. This procedure was not followed in & ,.
present case. After receiving Pauls’ letter, the Area Director scheduled an inspection,
Referrals are handled in a manner similar to that of a complaint. Paragraph B.1. of :
Chapter IX of the FOIM. The classification of the referral under the 8’OIU is to be made by
the Area Director and not by an employer. Paragraph A.4.a. of Chapter IX requires
classification of a complaint as formal or nonformal. The FOM grants the Area Director the
discretion as to how to proceed when the referral identifies a hazard of a potentially serious
nature. It is clear that he can schedule an inspection in such circumstances if he deems it
necessary. Paragraph B.3.e. of Chapter IX of FOAL In any event, the fact that he
conducted an inspection rather than notify the employer by letter is no basis for a dismissal
of the citation. If the Area Director was in error in proceeding with an inspection, his
failure to adhere strictly to the guidelines of the FOA4 was a procedural error and is not
grounds for vacating the citation. The FOA4 guidelines “do not have the force and effect of
law nor do they accord important procedural or substantive rights to individuals.” IWC
Cop., 5 BNA OSHC 1707, 1710, 1977-78 CCH OSHD li 22,060 (No. 13155, 1977).
 The wording of the cited standard and the wording of the citation and complaint are
of crucial importance to the determination of this case. Section 1926404(b)(l)(i), the
standard for which Mautz was cited, provides:
(i) The employer shall use either ground fault circuit interrupters as specified
in paragraph (b)(l)(ii) of this section or an assured equipment grounding
conductor program as specified in paragraph (b)(l)@) of this section to
protect employees on construction sites. These requirements are in addition
to any other requirements for equipment grounding conductors. (Emphasis
added)

Section 1926.404(b)(l)(i) gives the employer a choice: it can comply with paragraph

(b)(l)(ii) bY using GFCIs, or it can comply with paragraph (b)(l)(iii) by establishing and.
maintaining an assured equipment grounding . program.
Section 1926.404(b)( l)(ii) provides in pertinent part: ,
.s
,, ’
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(ii) All 120=volt, single-phase, 1% and 20-ampere receptacle outlets 0111;. 2,
,
construction sites, which are not a part of the permanent wiringof the build& *
or structure and which are in use by employees, shall have approved ground-
fault circuit interrupters for personal protection. (Emphasis added)

      The citation charged the following:
      In the filter building and behind the sludge pump room, the employer did not
      use either ground fault circuit interrupters or an assured equipment grounding
      conductor program on temporarywiringsystemscreated by using extensioncords
      on a jixed penrranent wiring system, exposing employees to the hazard of
      electric shock. (Emphasis added)

      Paragraph    V(b)     of the Secretary’s       complaint     alleged   that   Mautz   violated   5

1926.404(b)(l)(i) b ecause it “did not use either ground fault circuit interrupters or an assured
equipment grounding conductor program on temporary wiring systems created by using
extension cords on a jixed permanent wiringsystem, exposing employees to the hazard of
electric shock.” (Emphasis added) Paragraph (b)(l)(ii) applies to 12~volt single-phase, 15
and 20-ampere receptacle outlets. As Mautz points out, the Secretary failed to adduce a
single iota of evidence regarding the voltage and amperage of the receptacle outlets at issue.

                                                 8                                                              /

No mention of this crucial element of the standard appears anywhere in the record. Thus,
the Secretary has failed to meet her burden of proving a violation of paragraph (b)(l)@).
Apparently realizing that she failed to carry her burden of proof as to the use of the
GFCIs, the Secretary states in her answer to Mautz’s petition for an award of attorneys’ fees
that she “was never concerned with proving that the voltage was 120 volts as required by the
first part of the cited standards because she was proceeding under the second part of the
standard which on its face is applicable to all cord sets and receptacles regardless of their
voltage” (Secretary’s Answer, pg. 17). A review of the record in this case refutes the
Secretary’s argument that she was proceeding solely under the provision relating to the
assured equipment ground conductor program and not the provision relating to GFCIs.
Elvin Pauls’ letter to OSHA specifically mentions the “need for ground fault circuit
interrupters” (Exh. C-1). An assured equipment grounding conductor pro&F is not
mentioned. In his testimony, Pauls never mentions Mautz’s lack of a grounding prograin b$@
‘8
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testifies at length concerning Mautz’s lack of GFCIs (Tr. 7-63). John Giefer’s tes
initially and primarily directed to the GFCI provision and Mautz’s noncompliance wit& id ’
Giefer was questioned directly about this by Judge Salyers (Tr. 80):
Q. You are saying once you obtained admissian [sic] from the
respondent that they were not using those circuit interrupters,
that was sufficient for you to base the citation as you did in this
case?

    A       That’s correct.

    Giefer’s testimony goes on for approximately thirty pages regarding his investigation

of Mautz’s lack of GFCIs (Tr. 63-91). Giefer does mention that he inquired about Mautz’s
assured equipment grounding program and was told that it did not have one (Tr. 91-93).
An objective reading of the transcript makes clear that the primary theory of the Secretary’s
case was that Mautz violated paragraph (b)(l)@) and that the theory of an alleged violation
of paragraph (b)(l)(iii) was a fall-back position.
 Section 1926.404(b)(l)@) provides in pertinent part:
(iii) The employer shall establish and implement an assured equipment
grounding conductor program on construction sites covering all cord sets,
receptacles which are not a part of the building or structure, and equipment
connected by cord and plug which are available for use or used by employees.

This standard applies to “all cord sets” and to “equipment connected by cord and plug.”
Section 1926.404(b)(l)(i) provides that an employer must use either GFCIs or an assured
equipment grounding conductor program. Because it is undisputed that Mautz was not using
GFCIs, Mautz was required to have an assured equipment grounding conductor program.
Mautz did not have such a program in place, so it would seem to follow that Mautz was in
violation of 8 1926.404(b)(l)(i). But reference to the citation and complaint reveal a wrinkle
. :
in the case. The citation and complaint both specifically charge that Mautz failed to he “8.
.1
+
a grounding program “on temporarywiringsystems erected by using extension cords on--a
fixed permanent wiring system.” This is the specific offense with which Mautz was chaiged,
and it is the only offense which Mautz must defend against. Therefore, if the use of
extension cords does not create a temporary wiring system, as Mautz argues, no violation
can be found.
There is no dispute that the receptacle outlets into which the extension cords were
plugged were part of the permanent wiring of the building. The standard does not mention
“temporary wiring”; that is the Secretary’s phrase. The standard makes clear that
receptacle outlets which are part of the permanent wiring of the building or structure are
not required to be protected by GFCIs. Accordingly, if a power tool is plugged directly into
the permanent receptacle outlet, no GFCI is required. Where tools are powered by means
of “extension cords,” the Secretary contends that the receptacles at the end of the cords are
receptacle outlets which are not part of the permanent wiring of the building or structure,
She submits that the extension cord becomes a substitute for the fixed wiring.
Mautz argues that using an extension cord to connect a power tool to a receptacle
outlet which is part of the permanent wiring system does not constitute temporary wiring.

                                            10

Judge Salyers found the Secretary’s argument that extension cords create a temporary power
source at the end of the extension cord to be reasonable. He gave several reasons to
support his conch&on, It cannot be concluded from the limited evidence in the record that
such a position is unreasonable. The standard itself is vague, and no definition is given for
what constitutes “receptacle outlets . . . which are not a part of the permanent wiring.” The
only evidence Mautz adduced to support its contention that extension cords are not
temporary wiring was the hearsay testimony of Mautz’s job superintendent, Bud Tewell,
recounting what Mautz’s electrician, John Luthe, said at the closing conference (Tr. 158-159).
The crucial question involves a legal interpretation. The Commission has not ruled
on the issue of whether the use of extension cords in these circumstances creates a
temporary wiring system. Judges of the Commission have decided the issue b~tk~$~$
The law on the question is in the formative stages. The Secretary was substan@@?
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in proceeding on the theory that Mautz was in violation of 0 1926.404(b)(l)(i&]- .’i
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Repeat Classification

    Mautz also contends that the Secretary’s classification of the violation as repeat was

not substantially justified. This argument is without merit. On May 24, 1988, Mautz was
issued an “other” citation and Notification of Penalty. Item 3 of the citation alleged a
violation of 29 C.F.R. 3 1926.404(b)(l)(i). The citation became a final order of the Review
Commission because it was not contested by Mautz (Exhs. C-4, C-5; Tr. 95-97, 110-114).
In Potlatch Coporation, 7 BNA OSHC 1061,1979 CCH OSHD 1 23,294 (No. 16183,
1979), at 28,171, the Commission held that a violation is repeated under section 17(a) of the
Act if, at the time of the alleged repeated violation, there was a Commission final order
against the same employer for a substantially similar violation. The Secretary may establish

6 Compare Levi Case Co., 14 BNA OSHC 2047,199l CCH OSHD ll (No. 89-584, Ml), wherein an
extension cord is considered temporary wiring even though the receptaclkkas plugged into was part of the
permanent wiring of the structure, with DKS Cons~~ctid, Inc., 14 BNA OSHC 1855,1987-90 CCH OSHD
ll29,095 (No. 90-91, 1990), wherein an extension cord is considered part of the permanent wiring of the
building.

                                                11

a prima facie case of similarity by showing that the prior and present violations are for
failure to comply with the same standard. Once apima facie case is established, the burden
shifts to the employer to show that the past and present violations are not substantially
similar. Mautz has not presented sufficient evidence to refute the prima facie case
established by the Secretary. The determination of a repeat violation was, under
Commission precedent, correct.

                           Withdrawal of the Notice of Contest
                                                                                                                   :
                                                                                                                   i
                                                                                                                  Ii‘
       The last issue needing some clarification is whether the Secretary was substantially                       i

justified in pursuing this litigation in light of her subsequent withdrawal of the citation. The +
Secretary submits that her decision to seek dismissal of the case in no way reflects upon the .
reasonableness of her position or the correctness of Judge Salyers’ disposition of the case. ,w.
A decision to seek withdrawal can be based on any of several factors. The motion of
withdrawal filed in this case cited “prosecutional discretion.” Mautz is a prevailing party
solely because of the motion to withdraw filed by the Secretary.
Should the motion to withdraw filed by the Secretary be deemed an admission that
her position was not substantially justified? This question must be answered in the negative.
The determination of whether the Secretary’s position was justified must be based on
whether the facts, as developed in the record, support her position as being substantially
justified. The awarding of fees and other expenses on the basis of the motion to withdraw
would in essence be making a determination on conjecture and speculation and contrary to
the general intent of the Act’s use of the phrase “substantially justified.” The Secretary does
not concede that her position was not substantially justified by her agreeing to dismiss the
matter, and there is no evidence to prove the contrary.
Even if it was concluded that the case should be decided for Mautz on the merits, this
would ‘not automatically result in approval of the application. The legislative history of the
Act makes it clear that there was no intent to raise a presumption that the Government was
without substantial justification merely because the agency lost the case. The court in Dole
V. phoertrjc Roofing Inc., 922 F.2d 1202, 1209 (5th Cir. 1991), makes this clear by stating:
The government’s burden of showing substantial justification for a case is not,
however, insurmountable. Id. “The standard . . . should not be read to raise
a presumption that the Government position was not substantially justified,
simply because it lost the case.”

(Citation omitted)

    A review of the facts of record establishes that the Secretary’s position in issuing the

citation and litigating the matter before Judge Salyers was substantially justified. The
application for fees and expenses is denied.

                             FINDINGS OF FACT AND
                              CONCLUSIONS OF LAW


    The foregoing decision constitutes the findings of fact and conclusions        of law in   ;::‘I

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                        ORDER


    Based upon the foregoing decision, it is hereby
    ORDERED:        That Mautz’s application for attorney’s fees and expenses is denied.




                                                J
                                                Judge

Date: December 11, 1991

                                           13