Johnson Masonry, Inc.

Plain-English summary

Johnson Masonry, Inc. sought fees and expenses under the Equal Access to Justice Act after OSHA withdrew a citation. An earlier order denied the application, and the company asked the judge to reopen the record or award costs incurred after the cited regulation was deleted on August 12, 1996. The judge found that the Secretary withdrew promptly after counsel learned of the change, but Johnson Masonry had already incurred trial-preparation expenses because the regulatory change had not been communicated. He amended the prior order to allow attorney fees and costs beginning August 12, 1996. The amount of the award is not stated in this order.

Decision snapshot

• Cited standard(s): No OSHA standard is identified in this fee order.
• Outcome: The prior order was amended to allow attorney fees and costs incurred beginning August 12, 1996.
• Key point: The employer could recover post-amendment preparation costs caused by the government's failure to communicate that the cited regulation had been deleted.

Full text (OSHRC public release)

                                                     |

SECRETARY OF LABOR, |
Complainant, |
|
v. | OSHRC DOCKET
| NO. 96-0289
JOHNSON MASONRY, INC., |
|
Respondent. |
|

                                        ORDER


   In a Final Order dated October 22, 1997, I denied the Respondent’s Application under

the Equal Access to Justice Act for fees and expenses incurred in connection with a citation

issued to it by the Occupational Safety and Health Administration.

   Disagreeing with this ruling, the Respondent filed a Petition to Reopen the Record for

Further Hearing and for Discretionary Review of my decision. In this document the

Respondent requested that the record be reopened to allow the presentation of testimony of its

expert consultant or, in the alternative, to allow costs and fees claimed from August 12, 1996

because there was no substantial justification for processing and prosecuting the case after

August 12, 1996, the Federal Register publication date deleting the incorporation by reference

of the Electrical Rules in the construction standards.
 -2-

   The Secretary of Labor opposed the Respondent’s motion on the ground that the

citation and the complaint were proper because the regulation was in effect at the times those

documents were issued and served. Also, the Secretary urged that the fact the Secretary’s

counsel was unaware of the withdrawal of the regulation constituted a “special circumstance”

which rendered any EAJA award unjust.

   Now the Respondent has filed a Motion to Allow Reply Brief to be submitted by

December 15, 1997, stating that it needed the extension to enable its attorney to consult with

the company’s safety consultant, to review the case file, and to articulate clearly the reasons

why the standard cited never applied.

    Counsel for the Secretary not only objected to this motion but also objected to any

filing of a response to his reply on the ground that there is nothing in the Commission Rules

which allows a Movant to file a reply to a response.

   After a detailed review of the Respondent’s motion to reopen the hearing and for

Discretionary Review and the Secretary’s Response, I believe that the previous ORDER

should be revised in part. Although the Secretary’s counsel promptly withdrew the citation

and complaint as soon as he learned of the change in the regulation in issue, it was still

necessary for the Respondent to prepare for trial, entailing legal fees and costs. It now appears

to me that the Respondent incurred attorney fees and costs after the August 12, 1996

amendment because the Secretary did not inform the Administration or its counsel of the

change. The Respondent should not be penalized for this failure.

   I conclude that it would be unfair to require the Respondent to absorb trial preparation

expense after the regulation change was noticed in the Federal Register.
 -3-

   The original ORDER in this case is amended to allow attorney fees and costs beginning

August 12, 1996.

   This conclusion renders moot the Respondent’s request to allow a Reply Brief, and

there will be no decision on this motion.

                                               __________________________
                                               Sidney J. Goldstein
                                               Judge, OSHRC

Dated: December 5, 1997