Perry, In re, 88-1475

Decision Date03 May 1989
Docket NumberNo. 88-1475,88-1475
Parties, 14 O.S.H. Cas.(BNA) 1113, 1989 O.S.H.D. (CCH) P 28,625 In re Stephen C. PERRY, et al., Petitioners. . Heard
CourtU.S. Court of Appeals — First Circuit

Amy R. Tabor, Cooperating Atty., Rhode Island Affiliate, American Civil Liberties Union, Pawtucket, R.I., for petitioners.

Scott R. McIntosh, Appellate Staff, Civil Div., Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen., Earl R. Ohman, Jr., General Counsel, Bruce Justh, Deputy General Counsel, Steven S. Scheige, Occupational Safety and Health Review Com'n, and Anthony J. Steinmeyer, Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C., were on brief for respondent Occupational Safety and Health Review Com'n.

Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Perched before us is a rara avis--an authentic case of first impression. Our efforts to classify this strange bird are hampered not only by the absence of direct precedents but also by the inexplicitness of the Equal Access to Justice Act (EAJA or Act), 28 U.S.C. Sec. 2412 (1982 & Supp.V 1987).

The case took wing as an application for writ of mandamus to this court, whereby petitioners succeeded in annulling a gag order improvidently issued by an administrative law judge (ALJ). In re Perry, 859 F.2d 1043 (1st Cir.1988). Petitioners then moved under section 2412(d) of EAJA for an award of attorneys' fees against the Occupational Safety and Health Review Commission (OSHRC or Commission). We thereupon directed the parties to address certain questions, 1 the first of which asked whether a purely adjudicative governmental entity, like OSHRC, might ever be held to suffer a fee award under EAJA.

By resort to legislative history and congressional purpose, we have come to conclude that there is no room in the EAJA nest for claims like this one. Accordingly, we answer the initial question in the negative and deny the motion for fees.


Because the underlying facts and travel are amply set forth in our earlier opinion, In re Perry, 859 F.2d at 1044-46, we abjure exegetic treatment of the origins and background of the mandamus proceeding. Suffice it to say that, once upon a time, the federal Occupational Safety and Health Administration (OSHA) cited General Dynamics (GenDy), a mammoth defense contractor, for transgressions of the Occupational The ALJ issued several orders warning that if any party used the proceedings or the information developed therein for "exploitive purposes," the offender's participatory rights would be jeopardized. In re Perry, 859 F.2d at 1045. Later on, the ALJ excluded Perry from the hearings on the ground that he was "exploiting the proceedings for [union] organiz[ing] purposes" in derogation of the outstanding protective orders. Id. at 1046. Perry, joined by the employee group, asked OSHRC to review the exclusionary order.

Safety and Health Act of 1970 (Safety/Health Act), 29 U.S.C. Secs. 651-78 (1982 & Supp.V 1987). Both GenDy and a cadre of employees contested OSHA's proposed enforcement action, objecting to the orders' stringency and laxity, respectively. The matter fell within the Commission's jurisdiction, so the objections were consolidated and referred to an ALJ. The parties included the Secretary of Labor (prosecuting on OSHA's behalf), GenDy, and the employee group. The latter designated petitioner Stephen C. Perry, a union organizer, as employee representative. See 29 C.F.R. Sec. 2200.22(a) (1988).

In the best of circumstances, interlocutory review is available only in the Commission's discretion; on this occasion review was automatically refused when OSHRC, lacking a quorum because of vacancies (two commissioners' offices were unfilled), was unable to act on the request within 30 days. See 29 U.S.C. Sec. 661(f); 29 C.F.R. Sec. 2200.73(b) (1988); see also In re Perry, 859 F.2d at 1046. No appeal was possible. See 29 U.S.C. Secs. 659(c), 660(a) (limiting courts' appellate jurisdiction to "final" orders of the Commission). Nevertheless, Perry and the employees (petitioners before us) sought mandamus in the hope that we might lift the gag order and reverse the exclusionary edict. Upon receipt of the mandamus petition, we directed the Secretary (on OSHA's behalf), GenDy, and OSHRC to respond to it. The replies proved to be a mixed bag. The Secretary denounced the gag order and supported issuance of the writ. GenDy took an opposite tack, defending the ALJ's rulings up and down the line. The Commission straddled the fence; in a carefully-worded response, it declined to take a position on the validity of what had transpired but questioned whether mandamus was an appropriate vehicle for testing the rulings.

We took jurisdiction and held that the ALJ's interference with petitioners' First Amendment rights so far "exceed[ed] the proper scope of [his] authority as to constitute a usurpation of power." In re Perry, 859 F.2d at 1050. We undid both the gag order and Perry's banishment. Id. Petitioners plainly "prevailed." They then filed the instant motion. In it, they have not requested fees from the Secretary of Labor or OSHA, but have trained their EAJA guns exclusively on OSHRC.


The principal purpose of the Safety/Health Act was to improve working conditions by formulating and overseeing occupational safety and health standards in the work place. See, e.g., 29 U.S.C. Sec. 651(b). The law vested rulemaking and enforcement powers in the Secretary of Labor, who exercises those powers through OSHA. See 29 U.S.C. Secs. 655, 657-59. But, adjudicatory responsibilities lie elsewhere; it is OSHRC, not OSHA or the Secretary, which is given the task of "carrying out adjudicatory functions under [the Act]." 29 U.S.C. Sec. 651(b)(3). In a nutshell, "Congress gave OSHA the power to make safety rules and to enforce them; but it gave OSHRC, an independent administrative body, the power to adjudicate violations of OSHA's rules and regulations." Donovan v. A. Amorello & Sons, Inc., 761 F.2d 61, 63 (1st Cir.1985).

The duarchy operates in the following manner. The Secretary, through OSHA, promulgates safety and health standards for businesses. 29 U.S.C. Sec. 655(a)-(e). OSHA is authorized to make inspections and investigations to insure compliance. 29 U.S.C. Sec. 657. If OSHA concludes that its standards have been violated, it may issue citations and specify abatement periods. 29 U.S.C. Sec. 658(a). Once such a citation is contested, OSHRC jurisdiction attaches. A hearing is held before an Whether or not plenary administrative review is undertaken, "[t]he Commission's function is to act as a neutral arbiter...." Cuyahoga Valley Ry. Co. v. United Transportation Union, 474 U.S. 3, 7, 106 S.Ct. 286, 288, 88 L.Ed.2d 2 (1985) (per curiam). OSHRC thus differs from the conventional agency model in that it is purely an adjudicator; there is no intermixing of regulatory, prosecutorial, and adjudicative functions. See A. Amorello & Sons, 761 F.2d at 65 (discussing OSHRC's role); see also Marshall v. OSHRC, 635 F.2d 544, 547 (6th Cir.1980); Marshall v. Sun Petroleum Products, 622 F.2d 1176, 1180-84 (3d Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980); Brennan v. OSHRC, 505 F.2d 869, 871 (10th Cir.1974); Dale M. Madden Constr., Inc. v. Hodgson, 502 F.2d 278, 280-81 (9th Cir.1974). 2 For this reason, OSHRC has been likened to a federal district court:

OSHRC functionary, an ALJ, who, after taking evidence, files a report (Report). 29 U.S.C. Sec. 659(c). The Report may suggest affirming or reversing OSHA's order or modifying it in some way(s). Id. OSHRC, which by statute is to be composed of three members, 29 U.S.C. Sec. 661(a), receives the Report. If OSHRC directs administrative review within 30 days, it then conducts such review, and thereafter accepts, rejects, or modifies the Report in whole or in part, 29 U.S.C. Sec. 659(c). Otherwise, the Report becomes the Commission's final order. 29 U.S.C. Sec. 661(j). Final orders of the Commission are reviewable in the appropriate court of appeals on the petition of "[a]ny person adversely affected or aggrieved," 29 U.S.C. Sec. 660(a), or of the Secretary. 29 U.S.C. Sec. 660(b).

The commission was envisioned by its creators to be similar to a district court. It was established to settle disputes between employers and the Secretary of Labor over citations issued by the Secretary's inspectors. The commission, like a district court, has no duty or interest in defending its decision on appeal. As a purely adjudicative entity, it has no stake in the outcome of the litigation.

Oil, Chemical & Atomic Workers Int'l Union v. OSHRC, 671 F.2d 643, 652 (D.C.Cir.) (per curiam), cert. denied, 459 U.S. 905, 103 S.Ct. 206, 74 L.Ed.2d 165 (1982). See also Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act 466 (Comm.Print 1971) (remarks of Sen. Javits) (OSHRC "should be [afforded] the same authority as ... a judge"); id. at 475 (remarks of Sen. Holland) (similar); 116 Cong.Rec. 38708 (Nov. 24, 1970) (statement of Rep. Steiger) (characterizing OSHRC as "an independent court, so to speak").


We have discovered only two cases which touch at all upon the issue of whether an EAJA award can be rendered against a pure adjudicator as an aftermath of civil litigation. 3 In S & H Riggers & Erectors With respect, we decline to emulate these examples. As we see it, the threshold question is whether EAJA extends to purely adjudicative entities. Only if that question is answered affirmatively should we consider whether the government has shown either that its position was "substantially justified" or that "special circumstances" render an EAJA award unjust. See 28 U.S.C. Sec. 2412(d)(1)(A); see also Appendix (questions 2 & 3). We proceed, therefore, to the heart of...

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