Terence Froman, Inc.

Plain-English summary

OSHA cited Terence Froman under the general duty clause over spring clips on a concrete-pump boom coupling, then withdrew the citation before adjudication. The company applied under the Equal Access to Justice Act for $4,999.10 in attorney fees and expenses. The judge found that the Secretary's unilateral withdrawal did not make the company a prevailing party because it produced no enforceable judgment, consent decree, or settlement providing judicial relief. The dismissal merely acknowledged the unreviewable withdrawal and did not state that it was with prejudice. The fee application was denied.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: The application for $4,999.10 in attorney fees and expenses was denied.
• Key point: A unilateral citation withdrawal without judicial relief did not confer prevailing-party status under the EAJA.

Full text (OSHRC public release)


TERENCE FROMAN, INC., OSHRC DOCKET No. 18-1301 (EAJA)

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3419

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET
No . 1 8-1301

TERENCE FROMAN, INC. ,

Respondent.

Appeara nces:

Michael P. Doyle , Esq., Office of Regional Solicitor, U.S. Department
of
Labor,
Philadelphia, PA .

For the Complainant.

Travis Vance, Esq., Fisher & Phillips, Charlotte, NC

For the Respondent.

Before: Administrative Law Judge Keith E. Bell

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission
(the Commission)
because
Terence Froman, Inc.
(Respondent)
filed an
Equal Access to Justice Act
Petition for Attorney’s Fees and Costs , 5 U.S.C. §
504
(EAJA)
which was
filed with the Commission
on
July 5, 2019 . The Secretary of Labor (Secretary) filed his Answer on
July
31 , 2019 . 1 Both the Complaint and Answer in this matter were timely filed. Respondent seeks attorney fees in the amount of $4 ,912 . 5 0
plus expenses in the amount of $86.60 for a total of $4,999.10 .
( Resp’t Pet’n
1 ) . For the reasons that follow, Respondent’s
Equal Access to Justice Act Petition for Attorney’s Fees and Costs
is hereby DENIED.

Background

On
or about February 6, 2018 , the Occupational Safety and Health Administration
(OSHA)
conducted an inspection of Respondent’s worksite located at
1619 Moyamensing Ave., Philadelphia, PA 19148 . As a result of the inspection,
a Citation and Notification of Penalty (Citation) package that included
one “serious” citation was issued for an alleged violation of
s ection 5(a)(1) of the Occupational Safety and Health Act,
29 U.S.C. § 654
(a)(1) . The
Citation alleged that
Respondent failed to ensure spring clips were properly installed into the couplings with lever closure of the boom of a Putzmeister concrete pump
on
February 6, 2018 . On August
6, 2018 , Respondent timely filed its Notice of Contest. This case was docketed by the Commission on
August 15, 2018 . On or a bout May 13, 2019 , the Secretary notified the undersigned of his intent to withdraw the
Citation
in this case. Thereafter, on
June 5, 2019 , the undersigned issued
Notice and Order of Report dismissing the case based on
Secretary’s withdrawal
with acknowledgment that withdrawals by the Secretary are unreviewable .

Equal Access to Justice Act

The
EAJA applies to proceedings before the Commission in section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 65 9 (c) . It ensures that an eligible applicant is not deterred from seeking review of, or defending against, unjustified Government actions.
Ewing v. Rodgers , 826 F.2d 967 (10th Cir.
1987).

Under EAJA, a n award is made to an eligible applicant w ho is the prevailing party
only if the g overnment’s action is found to be without substantial justification and there ar e no special circumstances that
make the award unjust.
Asbestos Abatement Consultation & Eng ’g , 15
BNA
OS HC 1252
(No 87–1522, 1991).

Under
the applicable
EAJA
provision ,
Respondent , Terence Froman,
is an eligible applicant if it
ha d
a net worth of not more than $7 million and employ ed
not more than 500 employees
as of the date the contest was filed. 29 C.F.R. § 2204.105(b)(4) and (c). According to its petition, Respondent meets the EAJA eligibility requirements. ( Resp’t Pet’n 2 ) .

The EAJA does not routinely award attorneys’ fees and expenses to a prevailing party. While the applicant has the burd en of proving eligibility, the g overnment has the burden of demonstrating that its action was substantially justified.
Dole v. Phoenix Roofing , Inc. 922 F.2d 1202, 1209 (5th Cir.
1991), 29 C.F.R. § 2 204.106(a).

Timeliness

An EAJA application must be filed within thirty days after the period for seeking appellate review expires. 29 C.F.R. §
2204.302(a). The
undersigned’s
Notice of Order and Report acknowledging the Secretary’s withdrawal and dismissing this case was docketed on June 6, 2019 . Thereafter, Respondent
had sixty days from
June 6, 2019 , to file any appeal. Fed. R. App. P. Rule 4(a)(B). Respondent’s EAJA application in this case was received by the Commission on
July 5, 2019,
and its timeliness is undisputed .
Accordingly, t he undersigned finds that the application was timely filed. 2

Prevailing Party

A prevailing applicant may receive an award for fees and expenses in connection with a proceeding, or in a discrete substantive portion of the proceedings, unless the position of the
Secretary
was substantially justified. The position of the
Secretary
includes, in addition to the position taken by the
Secretary
in the adversary adjudication, the action or failure to act by the
Secretary
upon which the adversary adjudication is based. The burden of persuasion that an award should not be made to an eligible prevailing applicant because the
Secretary 's position was substantially justified is on the
Secretary .

29 C.F.R. § 2204.106(a). A party need not have prevailed on all issues.

It is sufficient that “... the party seeking fees need not have prevailed as to the central issue in the case but only as to a discrete substantive portion of the proceeding.”
H.P. Fowler Contracting Corp ., 11
BNA
OSHC 1841, 1845
(No. 80–3699, 1984).

Also, a party may be deemed prevailing if it obtains a favorable settlement of the case ; a concept that was grounded in an early committee report of EAJA.

H.R.
Rep. No.
96- 1418
at 11
(1980)
reprinted in
1980 U.S.C.C.A.N. 4984 ,
4990
( “A party may be deemed prevailing if he obtains a favorable settlement of his case”) .
In the instant case , a resolution was reached based
on the Secretary’s withdrawal of his Cita tion
involving one “serious” item
with a proposed penalty in the amount of $ 3,049. 00. The Commission has held that a
withdrawal by the Secretary
is considered a favorable outcome for Respondent thereby making it the
“prevailing party.” See Valley Constr .
Co. , No.
92-3644,
1995 WL
455809, at *1
( O.S.H.R.C. A . L . J . ,
July 20, 1995 )
(finding
that Respondent
was the “prevailing party” with respect to
citations withdrawn by the Secretary
as part of a settlement agreement ). However,
this issue has since been addressed by the Supreme Court of the United States and various appellate courts.

I n
Benton-Georgia, LLC , 26 BNA OSHC
1293
(No. 15-1539 , 2016 )
( Benton-Georgia )
the administrative law judge
concluded
that
although the Secretary filed a Motion to Withdraw,
the employer was not a “prevailing party” within the meaning of the Equal Access to Justice Act . In
Benton-Georgia , the judge principally relie d
on the Supreme Court’s ruling in
B uckhannon B d.
and Care Home, Inc. v. W. Va. Dept. of Health and Human Res . ,
532 U.S. 598 (2001)
( Buckhannon ) . I n
Buckhannon ,
the Court
took certiorari to resolve
disagreements among Courts of Appeals regarding the proper test
to determine
whether an applicant for attorney’s fees under a fee-shifting provision of a statute qualified as a “prevailing party”. Buckha n non
532
at
602.
Specifically, the Fourth Circuit Court of Appeals rejec ted
the widely used “catalyst theory”
and held that “a person may not be a prevailing party except by virtue of having obtained
an enforceable judgment, consent decree, or settlement giving some of the legal relief sought.” 3
Id. U nder the “catalyst theory,” a plaintiff is a “prevailing party” if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct.
Buckhannon
532 U.S.
at 601.
In its analysis,
the Supreme Court
noted that it had not historically awarded attorney’s fees when there was
“judicial pronouncement,” unaccompanied by “judicial relief,” is not sufficient to make a claimant a “prevailing party.” Buckhannon , 532 U.S. at 606
( citing
Hewitt
v. Helms ,
482 U.S. 755, 760
(1987).

In an EAJA case appealed from an adverse ruling by the Federal Mine Safety and Health Review Commission, the D.C. Circuit Court of Appeals ,
which has appellate jurisdiction over this case ,
held that the mine operator was not a “prevailing party” because the Secretary unilaterally ended the relationship which left Cactus Canyon in the same position it was in before the citations were issued, and the dismissal was not “with prejudice”.
Cactus Canyon Quarries, Inc. v. Fed .
Mine Safety and Health Review Comm ’n ,
820 F.3d 12, 15 (D.C. Cir. 2016). 4
Here, the Secretary
did not file a motion, but rather
a Notice of Withdrawal that simply stated, “[t]he Secretary of Labor withdraws the Citation and Notification of Penalty Issued for Inspection 1294419.” Subsequently, the undersigned issued final order that stated, among other things, “[t]he
Commission acknowledges receipt of the Secretary’s notice of withdraw al”. The Order cites
Cuyahoga Valley Ry. Co. v. Un i ted Transp. Union,
474 U.S. 3 (1985) in which the Supreme Court held that the Secretary’s discretion to withdraw is unreviewable. Finally, the Order dismissed the case making no mention of “prejudice”.

The undersigned hereby adopts the well-reasoned and detailed analysis of the
Benton-Georgia
decision
and finds that
Respondent, Terence Froman,
is not a “prevailing party” within the meaning of EAJA because the Secretary’s withdrawal is not the result of a
judicial pronouncement
that provides judicial relief , but rather a unilateral exercise of prosecutorial discretion. 5

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 and Rule 308 of the Commission Rules of Procedure. 29 C.F.R. § 2204.308.

ORDER

Based on the foregoing, Respondent’s Application for Award Under the Equal Access to Justice Act is hereby DENIED.

SO ORDERED
by:

Dated:    December 2, 2019          /s/ _____

Keith E. Bell

OSHRC Judge

"

1
Respondent filed its Reply to Complainant’s EAJA Answer on
August 21, 2019. All filings related to this matter were considered by the undersigned in reaching this decision.

2
The Secretary does not dispute the timeliness of Respondent’s EAJA application.

3
The Fourth Circuit Court of Appeals was specifically addressing the fee-shifting provisions of the Fair Housing Amendments
Act and the Americans with Disabilities Act. Buckhannon
532 U.S.
at 601-602. However, in
Buckhannon , the Supreme Court was looking more broadly at its prior rulings addressing the issue of “prevailing party”.

4
Following the Supreme Court’s analysis in
Buckhannon , the D.C. Circuit Court of Appeals noted that it previously held that the phrase “prevailing party” in fee-shifting statutes should be treated the same unless there is a good reason to do otherwise. Cactus Canyon
at 16 (quoting
Green Aviation Mgmt. Co. , 676 F.3d 200, 202
(D.C. Cir. 2012)).

5
This result does not disturb the Commission’s prior decision in
Valley Construction
because the withdrawal here was not part of a settlement agreement.