Award for defense fees denied by OSHRC

Abstract

A prefabricated steel construction company attempted to recover the fees and expenses it incurred while defending against a citation that was legally voided by a judge.

The company, which was cited for an alleged repeat violation of fall protection under the construction safety standards, filed an Equal Access to Justice Act (EAJA) application on April 19, 2005. An EAJA entitles a prevailing party that meets eligibility criteria to an award for fees and other expenses incurred in connection with an adversarial proceeding, unless the Secretary of Labor was substantially justified or special circumstances make an award unjust.

Conclusion

The judge denied the company's application because he found that the Secretary was substantially justified in pursuing the violation. The judge ruled that the Secretary made a reasonable conclusion based on the testimony of the compliance officer's observations and the specifications of the forklift's operation manual. The manual indicated that the scaffold platform would have been separated from the eaves of the building by more than 14 inches if it was moved by the forklift to another location. The Occupational Safety and Health Review Commission (OSHRC) affirmed the judge's decision.

Full text decision

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