Dole v. Phoenix Roofing, Inc.

• Decision Date: 04 February 1991
• Docket Number: No. 90-4092,90-4092
• Citation: 922 F.2d 1202
• Parties: 14 O.S.H. Cas.(BNA) 2025, 1991 O.S.H.D. (CCH) P 29,233 Elizabeth DOLE, Secretary of Labor, Petitioner-Cross Respondent, v. PHOENIX ROOFING, INC., Respondent-Cross Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1202

922 F.2d 1202

14 O.S.H. Cas.(BNA) 2025, 1991 O.S.H.D. (CCH)

P 29,233

Elizabeth DOLE, Secretary of Labor, Petitioner-Cross Respondent, v. PHOENIX ROOFING, INC., Respondent-Cross Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION, Respondent.

No. 90-4092.

United States Court of Appeals, Fifth Circuit.

Feb. 4, 1991.

Jeffrey A. Hennemuth, Atty., Allen H. Feldman, Charles I. Hadden, Robert P. Davis, Sol. of Labor, U.S. Dept. of Labor, Washington, D.C., for U.S.

Robert E. Rader, Jr., Locke, Purnell, Rain & Harrell, P.C., Dallas, Tex., for respondent-cross petitioner.

Ray H. Darling, Jr., Exec. Sec., OSHRC, Washington, D.C., for respondent.

Petitions for Review of an Order of the Occupational Safety and Health Review Commission.

Before GOLDBERG, KING and DUHE, Circuit Judges.

GOLDBERG, Circuit Judge:

The Secretary of Labor (the "Secretary") appeals the Occupational Safety and Health Review Commission's (the "OSHRC") decision awarding attorney's fees to Phoenix Roofing, Inc. ("Phoenix"). The Secretary alleges that for several reasons the OSHRC lacked jurisdiction under the Equal Access to Justice Act (the "EAJA") to award these fees. First, the Secretary alleges that Phoenix failed to meet the statutory time requirements for filing an application for attorney's fees in reference to the Second Citation (as hereinafter defined). Second, the Secretary alleges that the OSHRC lacked jurisdiction to award fees incurred in connection with the First Citation (as hereinafter defined) because Phoenix appealed the OSHRC's decision as to the First Citation to the Fifth Circuit and therefore under the EAJA only the Fifth Circuit had jurisdiction to consider an application for attorney's fees. Finally, the Secretary argues that even if the OSHRC had jurisdiction to consider the application, it lacked authority to award the fees because it failed to make a finding that the agency action was not "substantially justified." Although we find that the OSHRC did have jurisdiction under the EAJA to consider Phoenix's application for attorney's fees, we reverse and remand to the OSHRC to make a finding as to whether the agency action was "substantially justified."

I. FACTS AND PROCEEDINGS BELOW

This case arises out of citations the Secretary issued Phoenix for violations which allegedly occurred when Phoenix employees were engaged in replacing the roof on a building at Love Field Airport in Dallas, Texas. After an OSHA compliance officer inspected Phoenix's worksite, the Secretary issued two citations against Phoenix. The First Citation (herein so called) alleged a serious violation of 29 C.F.R. 1926.500(g)(1). The Secretary also cited Phoenix for a serious violation of 29 C.F.R. 1926.500(g)(3)(i)(b) (the "Second Citation").

The employer contested both citations, and after a hearing the OSHRC Administrative Law Judge (the "Commission ALJ") affirmed the First Citation and refused to reclassify the violation as de minimis. The Commission ALJ vacated the Second Citation and the decision became final on May 23, 1988. Phoenix then appealed the OSHRC decision as to the First Citation to this court. On June 9, 1989, this court affirmed the First Citation. However, the majority reversed the Commission's classification of the violation as "serious" and reversed the assessment of a civil penalty. Phoenix Roofing, Inc. v. Dole, 874 F.2d 1027, 1029-31 (5th Cir.1989). Judge Garwood filed a dissenting opinion, arguing that the violation was indeed a serious one. Id. at 1034-36.

On July 13, 1989, Phoenix applied to the OSHRC for attorney's fees and expenses under the EAJA, incurred in connection with (1) the Commission ALJ's proceedings with respect to both the First and the Second Citation, and (2) the Fifth Circuit proceedings regarding the First Citation. Although the Secretary opposed the fee application on the grounds that the citations were substantially justified, the Commission ALJ granted the application, finding Phoenix to be "the prevailing party in the proceeding leading up to this application." The Commission ALJ, however, denied Phoenix's request for a supplemental award for fees incurred in connection with responding to the Secretary's Motion Opposing the Application, finding that Phoenix had not been asked to respond to the Secretary's objections. The Secretary now appeals the OSHRC decision awarding fees and expenses to Phoenix.

II. DISCUSSION

A. Jurisdiction

As a threshold matter, we must discuss whether this court has jurisdiction to consider the Secretary's appeal. As the Secretary candidly points out in her brief, the EAJA provides for appeal only when "a party other than the United States is dissatisfied with a determination of fees and other expenses made under [5 U.S.C.A. Sec. 504(a) ]." 5 U.S.C.A. Sec. 504(c)(2) (West Supp.1990) (emphasis added). Although this provision clearly suggests that the Secretary cannot obtain judicial review of OSHRC fee awards under the EAJA, the Secretary argues that this court has authority to hear the appeal under Section 11 of the Occupational Safety and Health Act (the "OSH Act"). The OSH Act authorizes review of "an[y] order of the Commission issued under subsection (c) of section 659." 29 U.S.C.A. Sec. 660(a) (West 1985). Section 659 covers "an order ... affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief." See 29 U.S.C.A. Secs. 659(c), 660(a).

We agree with the Secretary that although the EAJA is the source of the Commission's authority to award attorney's fees, this court has jurisdiction under the OSH Act because awards of attorney's fees are orders "directing other appropriate relief" within the meaning of section 659(c). This conclusion is supported by the jurisprudential rule that administrative determinations are presumed to be reviewable. In United States v. Fausto, the Supreme Court restated the well-established principle of statutory construction that "Congress will be presumed to have intended judicial review of agency action to be available unless there is 'persuasive reason' to believe otherwise.... [T]he presumption favoring judicial review ... may be 'overcom[e] whenever the congressional intent to preclude review is "fairly discernible in the statutory scheme." ' " United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 675, 98 L.Ed.2d 830 (1988); see also Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133, 2137, 90 L.Ed.2d 623 (1986); Russell v. Law Enforcement Assistance Admin., 637 F.2d 354, 356 (5th Cir. Unit A 1981). We conclude that the presumption favoring judicial review of OSHRC decision's as specifically stated in the OSH Act has not been overcome by inferences of intent drawn from the statutory scheme of the EAJA.

B. Statutory Framework of the EAJA

On October 1, 1981, Congress enacted the EAJA with the broad purpose of awarding private litigants the expenses of seeking review of or defending against unreasonable government action. See H.R.Rep. No. 1418, 96th Cong., 2d Sess. 5-6 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 4953, 4984. As Congress stated, "The purpose of this bill is to reduce the [financial] deterrents [of seeking review of governmental action] by entitling certain prevailing parties to recover an award of attorney fees, expert witness fees, and other expenses against the United States." H.R.Rep. No. 96-1418, 96th Cong., 2d Sess. at 6, reprinted in 1980 U.S.Code Cong. & Admin.News at 4984. Through the enactment of the EAJA, Congress intended to encourage litigants of limited means to vindicate their rights by challenging regulations or agency actions that they would otherwise comply with in order to avoid paying the cost of litigation. United States v. 329.73 Acres of Land, 704 F.2d 800, 801 (5th Cir.1983) (en banc).

The EAJA authorizes awards of attorney's fees and expenses against the government in certain administrative proceedings and in judicial proceedings. The statutes authorizing these awards are found in 5 U.S.C.A. section 504 and 28 U.S.C.A. section 2412 (West Supp.1990). The procedure for obtaining attorney's fees in an administrative proceeding is explained in 5 U.S.C.A. section 504, while the award of attorney's fees incurred in connection with judicial proceedings are governed by 28 U.S.C.A. section 2412. Although these sections are generally similar, they do vary in certain respects. For example, 28 U.S.C.A. section 2412(f) specifically provides that the government may appeal an award made against the United States in a judicial proceeding, while, as we discussed earlier, 5 U.S.C.A. specifically prohibits the government from appealing such an award when it is made in an agency adjudication.

In administrative proceedings, the statute requires any agency that conducts an "adversary adjudication" to 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." 5 U.S.C. Sec. 504(a)(1). The party seeking the attorney fee award must submit an application to the agency "within thirty days of a final disposition in the adversary adjudication." Sec. 504(a)(2). The application must include an itemized statement reflecting "the actual time expended and the rate at which fees and other expenses were computed," and must "also allege that the position of the agency was not substantially justified." Id. The adjudicative officer's decision on the fee application, which becomes "part of the record containing the final decision of the agency," must "include written findings and conclusions and the reason or basis therefor." Sec. 504(a)(3).

C. When Citations Achieve Finality

The first argument the Secretary makes when challenging the OSHRC's award of fees is that OSHRC...