Federal Clearing Die Casting Company

Plain-English summary

Federal Clearing Die Casting sought attorney fees from the Commission after a judge suppressed OSHA inspection evidence and dismissed the citations. By that time, the Secretary had already petitioned the court of appeals to review the Commission order. The Commission held that the Equal Access to Justice Act permits only the reviewing court to award fees connected with an agency decision once judicial review is sought. It affirmed dismissal of the fee application on that ground without deciding whether a related court ruling otherwise controlled the request.

Decision snapshot

• Cited standard(s): None. The decision concerns attorney-fee jurisdiction under the Equal Access to Justice Act.
• Outcome: Application for attorney fees dismissed.
• Key point: Once court-of-appeals review of a Commission decision is sought, an Equal Access to Justice Act fee request concerning that decision must be made to the court, not the Commission.

Full text (OSHRC public release)

Docket No. 80-2903

SECRETARY OF LABOR,

Complainant,

v.

FEDERAL CLEARING DIE CASTING

COMPANY,

Respondent.

OSHRC Docket No. 80-2903

DECISION

Before:  ROWLAND, Chairman, CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

This case is before us on review of Administrative Law Judge Ralph B. Maxwell's decision
dismissing Federal Clearing Die Casting Company's application for attorneys' fees under
the Equal Access to Justice Act, Pub. L. No. 96-481, 94 Stat. 2325 (1980).  We have
jurisdiction pursuant to 29 U.S.C. � 661(i) and 5 U.S.C. � 504.  See 46 Fed. Reg.
48,078, 48,083 (1981)(to be codified at 29 C.F.R.� 2204.309).  We affirm the judge's
dismissal of the application but for a different reason than that given by the judge.

I

Respondent, Federal Clearing Die Casting Company ("Federal"),
contested citations issued to it by the Secretary alleging violations of the Occupational
Safety and Health Act of 1970, 29 U.S.C. �� 651-678 ("OSH Act").  Judge
Maxwell suppressed the Secretary's evidence and dismissed the citations on the basis that
the warrant authorizing the Secretary's inspection of Federal's plant during which the
evidence was obtained was invalid.  The judge relied on the decision of the Seventh
Circuit in a collateral proceeding involving the validity of this warrant. [[1/]]
  The Secretary sought Commission review of the judge's decision, but review was not
directed and the judge's decision became a final order of the Commission by operation of
law.  See 29 U.S.C. � 661(i). The Secretary filed a petition for review of the
Commission final order in the United States Court of Appeals for the Seventh Circuit,
pursuant to section 11 of the OSH Act. [[2/]]

Federal then filed with the Commission an application under the Equal Access
to Justice Act ("EAJA") for an award of attorneys' fees incurred in contesting
the citations.  Judge Maxwell dismissed the application on the basis that the Seventh
Circuit's ruling denying an application for fees filed with it was "the law of the
case."  Federal petitioned for Commission review of the judge's dismissal of its
fee application and Chairman Rowland directed review.  The judge's dismissal of
Federal's fee application under EAJA is now before us.

II

Finding that "certain individuals, partnerships, corporations, and labor
and other organizations may be deterred from seeking review of, or defending against,
unreasonable governmental action because of the expense involved in securing the
vindication of their rights . . .," Congress sought to diminish that deterrent effect
by authorizing, through EAJA, the award of attorney fees, expert witness fees, and other
costs to certain parties that prevail against the United States in court actions or
administrative proceedings. Pub. L. No. 96-481, � 202, 94 Stat. 2325 (1980).  Thus,
EAJA requires an agency that conducts adversary adjudications, such as the Commission, to
award to a prevailing party, other than the United States, fees and other expenses
incurred by the party in connection with the proceeding, unless the position of the
government as a party was substantially justified or special circumstances make an award
unjust.  5 U.S.C. � 504(a)(l).  EAJA applies to any adversary adjudication
pending on, or commenced after, October 1, 1981. Pub. L. No. 96-481, � 208, 94 Stat.
2325, 2330.  To be eligible for an award of fees and expenses under EAJA, a party
that is a business, an association, or a private or public organization must employ no
more than 500 employees and, except for certain tax exempt organizations and agricultural
cooperatives, must have a net worth of no more than $5 million at the time the adversary
adjudication was initiated.  5 U.S.C. � 504 (b)(1)(B).

The Commission's interim rules implementing EAJA specify that the party
seeking an award has the burden of showing that it is eligible for the award, while the
Secretary has the burden of showing that an award should not be made.  46 Fed. Reg.
48,078, 48,081 (1981) (to be codified at 29 C.F.R. �� 2204.105 - 2204.106).  The
rules also provide that the term "adversary adjudication" as used in EAJA
includes employers' contests of citations or penalties before the Commission.  46
Fed. Reg. 48,078, 48,081, (1981) (to be codified at 29 C.F.R. � 2204.104).

When a court reviews an agency decision resulting from an adversary
adjudication, EAJA authorizes the court to award to a non-federal prevailing party fees
and other expenses incurred in connection with the agency proceeding, as well as fees and
expenses incurred in the court review.  28 U.S.C. �� 2412(d)(1) & 2412(d)(3).
  Additionally, EAJA provides that when a court reviews the decision resulting from
the adversary adjudication, an award for fees and other expenses may be made only by the
court.  5 U.S.C. � 504(c)(1).  To effectuate this provision of the statute, the
Commission's rules provide that "[i]f review of a Commission decision . . . is sought
in the court of appeals under section 11 of the OSH Act, 29 U.S.C. 660, an application for
an award filed with the Commission with regard to that decision shall be dismissed . . .
."46 Fed. Reg. 48,078, 48,082 (1981) (to be codified at 29 C.F.R. � 2204.302(c))

In this case, Federal filed with the Commission an application for attorneys'
fees under EAJA after the Secretary had sought appellate review of the decision with
regard to which the attorneys' fees were requested.[[3/]] Therefore, the judge lacked
authority to grant Federal's application, and the application should have been dismissed
under the above-quoted Commission rule.

Thus, it is not necessary for us to reach the issue, posed in Federal's petition for
review, of whether the Commission is bound in ruling on the fee application in this case
by the Seventh Circuit's decision denying attorneys' fees to Federal in a related case.

Accordingly, Judge Maxwell's order dismissing Federal's application for attorneys' fees is
affirmed.

SO ORDERED.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  JAN 31 1983

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1/]] When a compliance officer attempted to inspect Federal's plant
pursuant to an ex parte warrant on January 11, 1980, Federal refused entry and was held in
civil contempt by a federal district court.  In re Establishment Inspection of
Federal Clearing Die Casting Co., 8 BNA OSHC 1635, 1980 CCH OSHD � 24,437 (N.D. Ill.
1980).  The Seventh Circuit then denied Federal's motion for a stay pending appeal.
  After a further hearing in the district court, Federal agreed to permit the
inspection, which resulted in the citations contested before Judge Maxwell.

Subsequently, the Seventh Circuit reversed the district court's decision and
dissolved the warrant, finding that it had not been issued on probable cause.
  Donovan v. Federal Clearing Die Casting Co., 655 F.2d 793 (7th Cir. 1981).
  After prevailing in the court of appeals, Federal filed an application there for an
award of attorneys' fees under EAJA.  Although the court had found the warrant
invalid, it declined to award fees to Federal.  Because the district court had
enforced the warrant and a stay pending appeal had been denied, the appellate court
concluded that the government's position could not be considered to have been
"without substantial justification."

[[2/]] A divided Seventh Circuit panel subsequently reversed the judge's decision
suppressing the evidence and remanded the case for hearing on the merits.  Donovan v.
Federal Clearing Die Casting Co., 11 BNA OSHC 1014, 1982 CCH OSHD � 26,340 (7th Cir. Dec.
9, 1982).

[[3/]] As noted above, see note 2, that decision was subsequently reversed by
the Seventh Circuit.