Ben Hur Construction Company

Plain-English summary

Ben Hur Construction prevailed after OSHA withdrew or the judge vacated citations arising from a fatal crane-disassembly accident. The company then sought attorney fees and expenses under the Equal Access to Justice Act. The judge found the Secretary substantially justified in pursuing the crane-manual and amended training allegations, even though she did not prevail. The Secretary did not justify the crane-guarding item or the original willful training allegation, both of which were withdrawn before hearing. Ben Hur received $6,437.50 in attorney fees for defending those two allegations and preparing the fee application, while the remainder of its request was denied.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.550(a)(1); 29 C.F.R. § 1926.550(a)(8); 29 C.F.R. § 1926.503(a)(2)(iii); 29 C.F.R. § 1926.21(b)(2)
• Outcome: The EAJA application was granted in part, awarding $6,437.50 in attorney fees and denying the remaining fees and expenses.
• Key point: Losing or withdrawing a citation does not automatically justify a fee award, but the Secretary must provide a reasonable factual and legal basis for each allegation pursued.

Full text (OSHRC public release)

                              UNITED STATES OF AMERICA
    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,
Complainant
v. OSHRC Docket No. 09-1366
Ben Hur Construction Company, EAJA
Respondent.

Appearances:
Evert Van Wijk, Esquire, Office of the Solicitor, U.S. Department of Labor, Kansas City, Missouri
For Complainant

      Julie O’Keefe, Esquire, Armstrong Teasdale, LLP, St. Louis, Missouri
               For Respondent

Before: Administrative Law Judge Ken S. Welsch

                      DECISION AND ORDER GRANTING IN PART
                        RESPONDENT’S EAJA APPLICATION

      Ben Hur Construction Company (Ben Hur) seeks an award for attorney’s fees and expenses

pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, 29 C.F.R. §2204.101, et seq.
The attorney’s fees and expenses were incurred by Ben Hur in defending against serious and willful
citations issued by the Occupational Safety and Health Administration (OSHA) on July 24, 2009.
The court’s Decision and Order, entered on November 3, 2010, vacated the citations.
Ben Hur’s EAJA application, dated January 12, 2011, claims attorneys’ fees in the amount
of $34,762.50 (278.1 hours @ $125.00 per hour)1 and other fees and expenses of $20,167.22 (law
firm, trial transcript, Lawgical Choice, GorePerry, Bi-State, Smith Consulting, Hugh Murphy, Steve
Rank) for the period from July 29, 2009 to August 19, 2010. Ben Hur also seeks $3,987.50 (31.9
hours @ $125 per hour) for the preparation and filing of the EAJA application.

    1
    According to the application, the attorneys’ fees paid totaled $110,449 based upon an hourly rate of

approximately $400 per hour.

                                                    1

For the reasons discussed, Ben Hur’s application under the EAJA is approved, in part. The
Secretary was without substantial justification for the issuance of Citation no. 1, item 2 and Citation
no. 2, item 1, prior to its amendment. Total attorneys’ fees of $6,437.50 (51.5 hours @ $125 per
hour from July 29, 2009 to April 6, 2010) are deemed reasonable for Ben Hur’s defense against
§1926.550(a)(8) or §1926.503(a)(2)(iii) and its preparation of the EAJA application. No other fees
and expenses are appropriate.
Background
Ben Hur is a privately held construction company engaged primarily in steel erection and
precast concrete installation throughout the Midwest. Ben Hur is headquartered in St. Louis,
Missouri and employs approximately 160 employees.
In 2009, Ben Hur contracted to set the steel for various phases of a construction project for
the new “Edward Jones” corporate and brokers’ offices in Maryland Heights, Missouri. On February
3, 2009, a Ben Hur crew had completed setting the steel for Building 1 at Edward Jones North and
prepared to move its crane to another site (Tr. 18). In order to move the crane, a 100-ton lattice
boom Linkbelt 218 crawler crane, the crew had to disassemble it (Tr. 17). The crane operator was
Virgil (Pete) Bell and his apprentice was Steven Lillicrap who died when he attached his safety
lanyard to the live line from the crane’s drum.
After an inspection, OSHA issued to Ben Hur serious and willful citations on July 24, 2009.
The serious citation no. 1, alleged violations of 29 C.F.R. §1926.550(a)(1) (item 1) for not using a
signalman during crane disassembly, and 29 C.F.R. §1926.550(a)(8) (item 2) for failing to adequately
guard the crane boom hoist drum. The willful citation no. 2, alleged a violation of 29 C.F.R.
§1926.503(a)(2)(iii) for failing to train the apprentice on the use and location of personal fall arrest
systems. The citations proposed total penalties of $84,000.00. Ben Hur timely contested the
citations.
On April 9, 2010, the Secretary moved to amend willful citation no. 2, to allege a serious
violation of 29 C.F.R. §1926.21(b)(2) for failing to instruct employees in the recognition and
avoidance of unsafe conditions. The Secretary withdrew the willful violation of 29 C.F.R.
§1926.503(a)(2)(iii) and reduced the proposed penalty from $70,000.00 to $7,000.00. The motion
was granted.

                                               2

The hearing was held on May 11-12, 2010 in St. Louis, Missouri. The parties stipulated
jurisdiction and coverage. At the hearing, the Secretary withdrew serious citation no. 1, item 2,
alleged violation of 29 C.F.R. §1926.550(a)(8).
The court’s Decision and Order, issued November 3, 2010, vacated citation no. 1, item 1,
alleged violation of §1926.550(a)(1), and citation no. 2, as amended, alleged violation of
§1926.21(b)(2).
Equal Access to Justice Act
The EAJA applies to proceedings before the Review Commission through §10(c) of the
Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. §651, et seq. To receive an award
under the EAJA, it must be shown that the applicant is eligible; the applicant is the prevailing party;
and, the Secretary’s action is without substantial justification and there is no special circumstance
which makes the award unjust. While the applicant has the burden of persuasion to show it meets
the eligibility requirements to receive an award, the Secretary has the burden to show her position in
the matter was substantially justified. 29 C.F.R. §§2204.105 and 2204.106.
The Secretary does not dispute that Ben Hur’s EAJA application, filed January 12, 2011, was
timely filed.2
Eligibility
An eligible employer includes any “corporation . . . that has a net worth of not more than $7
million and employs not more than 500 employees.” Commission Rule 2204.105, 29 C.F.R.
§2204.105.
With approximately 160 employees and a net worth less than $6 million in July 2009, there
is no dispute that Ben Hur is an eligible employer under the EAJA (Secretary’s Response, p. 2).
Prevailing Party
Ben Hur, without dispute, was the prevailing party (Secretary’s Response, p. 3). The alleged
violations were either vacated by the court based after the hearing or the Secretary withdrew the
allegations prior to the hearing.

    2
     An application under the EAJA must be submitted “ in no case later than thirty days after the period for

seeking appellate review expires.” 29 C.F.R. §2204.302(a).

                                                    3

Substantial Justification
Since Ben Hur meets the EAJA eligibility criteria and was the prevailing party, it must be
determined whether the Secretary’s position was substantially justified in issuing and pursuing the
citations. There is no presumption the Secretary’s position was not substantially justified simply
because she lost the case or she withdrew the allegation prior to the hearing. Hocking Valley Steel
Erection, Inc., 11 BNA OSHC 1492, 1497 (No. 80-1463, 1983). The Secretary’s decision to litigate
does not have to be based upon a substantial probability of prevailing.
For EAJA purposes, “[T]he test of whether the Secretary’s action is substantially justified is
essentially one of reasonableness in law and fact.” Mautz & Oren, Inc., 16 BNA OSHC 1006, 1009
(No. 89-1366, 1993). Substantial justification is determined on a case-by-case basis.
With regard to the four elements of the Secretary’s burden of proof, Ben Hur did not dispute
the employee’s exposure and its knowledge of the conditions regarding crane disassembling. Ben Hur
did not assert an affirmative defense. Ben Hur denied the alleged conditions violated the cited
standards.
Citation No. 1
Item 1: Alleged Serious Violation of § 1926.550(a)(1)
Section 1926.550(a)(1) requires that “[T]he employer shall comply with the manufacturer’s
specifications and limitations applicable to the operation of any and all cranes and derricks.”
The citation alleged that during crane disassembly process, Ben Hur did not position a
signalman to observe all areas of motion and to warn the crane operator of any danger, i.e. that Mr.
Lillicrap was pulled into the boom hoist drum.
To support her position, the Secretary offered into evidence the Linkbelt 218 Crawler Crane
manual, section 5, entitled “Disassembly of the Crane and Attachment.” Page 5-23 of the manual,
entitled “Folding the Gantry” enumerated the procedures to be followed during disassembly. These
procedures included a provision that the disassembly crew “Position a Signalman to Observe All
Areas Of Motion and Warn Operator Of Danger.”
The court’s decision concluded that the manualinstructions were “recommendations” and not
“specifications” as provided by the standard. Also, even if a specification, the court found no
violation because the Secretary’s allegation involved booming up or down and not the act of raising

                                              4

or lowering the gantry which triggers the manual’s warning to have a signalman.
Despite vacating the citation, the Secretary’s position was substantially justified based upon
her fair and credible reading of the manufacturer’s manual. As applied to the standard, while the
introductory paragraph of section 5 of the operator’s manual identifies the procedures as
“recommended” safe procedures for disassembly, the Secretary’s position was that only the step by
step procedures for lowering of the gantry were “recommendations.”
However, unlike the steps, the Secretary argued, albeit unsuccessfully, that the “WARNING”
provision which mandates the use of a signalman was not a recommendation but a “specification.”
Immediately proceeding the “WARNING,” it states, “This Process Is To Be Followed Exactly Or .
. . .Personal Injury Could Result.” Unlike the step by step recommended procedures for disassembly,
the Secretary argued the positioning of a signalman was a required safety procedure.
In the Decision and Order, the court rejected the Secretary’s interpretation of the manual and
determined the manual’s instruction to have a signalman was part of the recommendations and as
such not a specification under § 1926.550(a)(1). The court looked to the definition of “specification”
and concluded the sense of a specification is that an employer can be penalized if it does not comply.
On the other hand, a recommendation does not imply an employer will be penalized if the
recommendation is not followed. It is a suggestion, a proposal, an option to be considered.
Although determined by the court to be incorrect, the Secretary’s interpretation did not lack
substantial justification for the purposes of EAJA. This was a case of first impression. The Secretary
was advancing a fair reading of the manufacturer’s manual which if accepted by the court could have
established a violation of § 1926.550(a)(1). The EAJA was not intended to prevent the Secretary
from pursuing a credible interpretation. It was a plausible reading of the manufacturer’s intent and
a credible extension of its purpose even though the Secretary did not prevail. A safety standard is
generally construed liberally to allow broad coverage in carrying out the congressional intent to
provide safe and healthful working conditions.
With regard to the Secretary’s allegation of booming up which the Court found did not trigger
the manual’s warning, the Secretary argued, albeit unsuccessfully, that the phrase “operation of
....cranes” should not be restricted to only those instances where the crane is engaged in performing
lifts. Austin Bridge Co., 1986-87 CCH OSHD 27,604 (No. 85-1061, 1986) (ALJ). Since the raising

                                              5

of the butt section of the boom involved an “area of motion,” the Secretary posits that Ben Hur was
required to position a signalman to warn Bell of any danger. It was a reasonable inference that
booming up included raising the gantry.
The Secretary had a reasonable basis in fact, no signalman was positioned. At the time of the
accident, Mr. Lillicrap was on the crane behind the cab in an area not observable by the crane
operator. As discussed, the manufacturer’s manual was susceptible to different interpretations. The
Secretary offered a credible application of the manual’s instructions to the standard’s use of
“specifications and limitations.” Her position was at least arguably correct. Her interpretation of the
manual was credible and the undisputed fact of no signalman supported her interpretation.
Substantial justification for the alleged violation of § 1926.550(a)(1) is established.
Item 2: Alleged Serious Violation of § 1926.550(a)(8)
Section 1926.550(a)(8) requires that “[B]elts, gears, shafts, pulleys, sprockets, spindles,
drums, fly wheels, chains, or other reciprocating, rotating, or other moving parts or equipment shall
be guarded if such parts are exposed to contact by employees, or otherwise create a hazard.”
The item was withdrawn by the Secretary at the commencement of the hearing on May 11,
2010 (Tr. 5). She offered no explanation for her withdrawal.
There is no presumption of the lack of justification merely because the citation was
withdrawn. Hocking Valley Steel Erectors, Inc., 11 BNA OSHC supra at 1498. The EAJA provides
the Secretary with every reason to withdraw a citation once the lack of substantial justification
appears and to provide evidence that until the withdrawal occurred, her position was substantially
justified.
The record, here, fails to show that the Secretary was substantially justified in pursuing the
alleged violation until April 6, 2010 when she notified Ben Hur of her intent to withdraw. In response
to the EAJA application, the Secretary made no showing of a reasonable basis for alleging the
violation. The Secretary has not shown facts to support the legal theory advanced by the issuance
of the citation. Although the unexplained withdrawal of a citation does not necessarily alter the
substantial justification of the Secretary’s position, the Secretary must produce some evidence, such
as affidavits, to support a claim of substantial justification. K.D.K Upset Forging, Inc., 12 BNA
OSHC 1856 (No 81-1932, 1986).

                                               6

In response to the EAJA application, the Secretary failed to produce affidavits or other
evidence justifying her allegation that the lack of guarding requirement was violated. She offered no
basis for citing Ben Hur for violation of § 1926.550(a)(8). Without providing such basis for her
issuance of the citation, the court is unable to determine whether the Secretary was substantially
justified.
Ben Hur is entitled to reasonable fees and expenses related to its defense against this
allegation.
Citation No. 2
Item 1: Alleged Serious Violation of § 1926.21(b)(2), As Amended
Section 1926.21(b)(2) requires that “[T]he employer shall instruct each employee in the
recognition and avoidance of unsafe conditions and the regulations applicable to his work
environment to control or eliminate any hazards or other exposure to illness or injury.”
The Secretary amended the allegation from a willful violation of § 1926.503(a)(2)(iii) to a
serious violation of § 1926.21(b)(2) on April 15, 2010. By e-mail, the Secretary notified Ben Hur
of her intention to amend the citation on April 6, 2010. The court’s decision to vacate the alleged
violation of § 1926.21(b)(2) was based upon an analysis of the evidence and not on the applicability
of the originally cited standard.
Mr. Lillicrap was an apprentice who had received training from the union. Also, Mr. Bell
testified that he instructed him on tying off. The standard requires employers to train all employees
whether or not they are out of union halls and no matter how experienced on the recognized hazards
in the workplace. Employees especially inexperienced employees are expected to be informed by
supervisory personnel of the dangers associated with the specific hazardous activity in which they are
engaged. National Industrial Constructors, Inc. 583 F.2d 1048 (8th Cir. 1978).
The fact Mr. Lillicrap tied-off to a live drum line which caused the accident does not establish
a violation of § 1926.21(b)(2). In El Paso Crane and Rigging Co., Inc., 16 BNA OSHC 1419 (No.
90-1106, 1993), the Commission stated that “[t]he issue as to this particular citation item . . . is
whether the employer’s program of safety instruction provided adequate guidance to the employees,
not whether the accident could have been averted.”
In her response to the EAJA application, Secretary claims she was substantially justified

                                               7

because Mr. Bell did not claim that he gave tie-off instructions until his deposition on April 13, 2010.
Prior to the issuance of the citation, the Secretary claims CSHO specifically asked Mr. Bell “did you
ever give [Mr. Lillicrap] any training about wearing a harness or where to attach or anything like
that?” At that time, rather than state as he claimed at his deposition and at the hearing, that such
training or instructions were indeed given, Bell answered “that’s not my expertise.” Secretary claims
Mr. Bell’s deposition was suspect given that he had previously never stated he provided tie-off
instruction to Mr. Lillicrap. If such information had been conveyed, the Secretary maintains the
citation may not have been pursued under either the original or subsequent cited standard. During the
Secretary’s cross examination, when confronted with the transcript of his recorded interview, she
characterizes Mr. Bell as evasive (Tr. 238-239). Also, the Secretary claims Mr. Bell did not make any
statement to the McCarthy accident investigator regarding instructions given to Lillicrap to not tie-off
to the live line (Exh. C-9). Given that Mr. Bell did not tell OSHA that he had provided tie-off
instruction and also did not mention this to the general contractor investigator, the Secretary was
substantially justified in proceeding.
Also, there was an issue as to Mr. Bell’s qualifications to give instruction on attaching
lanyards. Mr. Bell never worked above 6 feet. He had not worn fall protection equipment nor did he
have reason to know the proper tie off points on the crane. Mr. Bell testified his job duties did not
include giving any safety training. He never told Ben Hur management that he was ostensibly giving
safety training to Lillicrap (Tr. 235).
The EAJA is not to be read to deter the Secretary from pursing in good faith, cases which are
reasonable in advancing the objective of workplace safety and health, if such cases are reasonably
supportable in fact and law. The facts forming the basis of the Secretary’s position, as in this case, do
not need to be uncontradicted. Determinations based on disputed facts which are not resolved in favor
of the Secretary do not necessarily render the Secretary’s position as unjustified. If the credibility
determinations in this case had been resolved in favor of the Secretary as opposed to Ben Hur, the
Secretary’s claim of violation would have been supported. “[A] case which truly turns on credibility
issues is particularly ill-suited for the reallocation of litigation fees under the EAJA.” Consolidated
Construction, Inc., 16 BNA OSHC 1001, 1006 (No. 89-2839, 1993). Credibility determinations made
by the court do not mean the Secretary’s position lacked substantial justification. The Secretary is not

                                               8

accountable for the adverse resolution of credibility issues.
The Secretary has established that she was substantially justified in pursuing the alleged
violation of § 1926.21(b)(2). She had a reasonable basis; the contradictory and ambiguous statements
of crane operator Bell which was supported the lack of training records by Ben Hur, for the facts
alleged. The facts alleged supported the legal theory advanced by the Secretary that Ben Hur violated
§ 1926.21(b)(2).
However, the Secretary failed to provide a substantial justification for initially citing Ben Hur
for willful violation of § 1926.503(a)(2)(iii) in July 24, 2009. The Secretary in her motion to amend,
stated that “the incorrect standard was cited.” The Secretary offered no justification for citing
§ 1926.503(a)(2)(iii) or alleging a willful classification with a $70,000.00 proposed penalty.
Although both standards require fall protection training and the underlying factual violative
description remained the same, the Secretary’s withdrawal of the willful classification and high
proposed penalty makes Ben Hur the prevailing party to a substantial portion of the case. The
Secretary offered no evidence or information identifying her basis for alleging a willful violation or
requesting the maximum penalty. There were no affidavits or portions of the OSHA inspection file
provided supporting or justifying the allegation of willful. Without such support, the court cannot
conclude the Secretary was substantially justified for alleging a willful violation of
§ 1926.503(a)(2)(iii).
Special Circumstances
The record fails to show special circumstances which prevent an award of fees and expenses.
Ben Hur’s Fees and Expenses
Based upon finding a lack of substantial justification for alleging a violation of
§ 1926.550(a)(8) (Citation no. 1, item 2) and a willful violation of § 1926.503(a)(2)(iii) (Citation
no. 2, item 1), Ben Hur is entitled to reasonable attorneys’ fees and expenses for defending the alleged
violations and preparing the EAJA application.
As Ben Hur recognizes, the Commission limits an attorney’s hourly rate to $125. Ben Hur’s
EAJA application shows attorneys’ fees in the amount of $34,762.50 (278.1 hours) and other fees and
expenses of $20,167.22 (law firm, trial transcript, Lawgical Choice, GorePerry, Bi-State, Smith
Consulting, Hugh Murphy, Steve Rank) for the period from July 29, 2009 to August 19, 2010. Ben

                                               9

Hur also seeks $3,987.50 (31.9 hours) for the preparation and filing of the EAJA application.
In determining the reasonableness of attorneys’ fees for the Secretary’s lack of justification for
alleged serious violation of § 1926.550(a)(8) and willful violation of § 1926.503(a)(2)(iii), the court
considers the difficulty or complexity of the issues and the value of the services provided. In her
response, the Secretary does not contend that an award of reasonable fees and expenses are unjust.
She disputes the amount claimed as excessive.
The Secretary shows that Ben Hur was on notice of the Secretary’s intent to withdraw the
alleged violations of § 1926.550(a)(8) and § 1926.503(a)(2)(ii) on April 6, 2010. Although Ben Hur’s
counsel claims she was informed of the Secretary’s withdrawal on April 13, 2010 and did not spend
any material time on the items after that date, the Secretary shows an e-mail sent on April 6, 2010
where the Secretary advises counsel of the withdrawal of both items. Such e-mail gave counsel
sufficient notice to cease any further work on the two items.
Also, it is noted that Ben Hur’s EAJA application does not identify the portion of claimed
attorneys’ fees and expenses attributable to each citation item. The record fails to show the time spent
on a specific alleged citation item. In its application, Ben Hur specifically refers to the dates of 1/4/10,
2/16/10, 4/2/10 and 4/5/10 to show time spent (total of 10.3 hours) in researching and analyzing the
alleged violation of § 1926.550(a)(8).
In view of counsel’s experience in OSHA proceedings, her familiarity with Ben Hur’s
operation, the lack of novelty, the rather straightforward factual dispute between the parties, and the
Secretary’s withdrawal of the two items prior to the hearing, a reasonable amount of time spent by
counsel is no more than 36.5 hours (10.3 hours for §1926.550(a)(8) and 26.2 hours for the willful
violation of § 1926.503(a)(2)(ii)) or more than two-thirds of attorneys’ time spent between July 29,
2009 to April 6, 2010. Counsel’s records show a total of 45.5 hours. At $125 per hour, Ben Hur is
entitled to $4,562.50 in fees in defending the alleged violations of § 1926.550(a)(8) and
§ 1926.503(a)(2)(ii) for the period from July 29, 2009, when counsel initiated services, to April 6,
2010 when Ben Hur received notice of the withdrawal.
With regard to other fees and expenses in defending the alleged violations of § 1926.550(a)(8)
and § 1926.503(a)(2)(iii), Ben Hur’s application is also limited to the period of July 29, 2009 to April
6, 2010. A review of the EAJA application shows no expenses incurred by the law firm prior to April

                                                10

6, 2010. The lack of other fees and expenses prior to April 6, 2010 are also shown for the services
of Norma Carlin, Lawgical Choice, GorePerry, Bi-State, Smith Consulting, and expert Hugh Murphy.
The fees incurred by Steve Rank prior to April 6, 2010 (15.75 hours at $150 per hour) are not shown
to apply to the alleged violations of § 1926.550(a)(8) or § 1926.503(a)(2)(iii). According to the
application, the charges sought by Rank, a consulting expert, have not been paid, although payable.
Ben Hur’s application fails to show any other fees and expenses prior to April 6, 2009.
With regard to preparing the EAJA application, Ben Hur’s application shows fees of $3,987.50
at $125 per hour for 31.9 hours. A reasonable fee for submitting the application on two items which
were withdrawn prior to hearing is 15 hours at $125 per hour for $1,875.00.
A total of $6,437.50 in attorneys’ fees for 51.5 hours (36.5 hours for the defense and 15 hours
of EAJA preparation) is deemed reasonable for the Secretary’s lack of substantial justification for
alleged violations of § 1926.550(a)(8) and § 1926.503(a)(2)(iii). No other fees and expenses are
deemed applicable.
FINDINGS OF FACT AND CONCLUSIONS OF LAW

    The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that:
1. Ben Hur’s EAJA application for attorney fees and expenses is DENIED as to
items 1 and 3.

    2.     Ben Hur’s EAJA application for attorney fees and expenses is GRANTED as to item 2
    and fees in the total amount of $ 6,437.50 (defending the two alleged violations and preparing
    the EAJA application) is awarded as reasonable.

            No expenses were shown incurred prior to April 6, 2010 when Ben Hur was notified
    of the withdrawal of § 1926.550(a)(8) and § 1926.503(a)(2)(iii).




                                                          ___/s/_______________________
                                                          KEN S. WELSCH
                                                          Judge

Date: March 22, 2011

                                              11