Before: Ginsburg, Chief Judge, and Edwards, Circuit
Judge, and Williams, Senior Circuit Judge.
On Petitioner's Application for Attorneys' Fees
In August 1996, the Occupational Safety and Health Administration ("OSHA") cited petitioner American Wrecking Corporation ("AWC") for three willful violations of demolition safety regulations, after a fatal accident at a demolition site at which AWC was the subcontractor. Two of the citations were vacated during administrative proceedings before the Occupational Safety and Health Review Commission ("Commission"), while the third made its way to this court. On AWC's petition for review, we upheld the Commission's finding of liability as to that citation, but reversed the finding that AWC's violation was willful. See Am. Wrecking Corp. v. Sec'y of Labor, 351 F.3d 1254 (D.C. Cir. 2003).
AWC now seeks an award of nearly $300,000 in fees and expenses, pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (2000), which entitles a party to recover from the United States reasonable fees and expenses incurred by that party in any civil action or judicial review of agency action in which the party prevailed. 28 U.S.C. § 2412(d)(1)(A). Prevailing parties are not entitled to such an award, however, if the Government's position in litigation or at the agency level was "substantially justified." Id. In addition, only such fees and expenses as are reasonable are available to a prevailing party. 28 U.S.C. § 2412(d)(2)(A). In this case, we find that the Secretary of Labor's ("Secretary") position was substantially justified in all but two phases of the proceedings against AWC. Moreover, we find that many of the expenses and fees AWC has requested exceed the bounds of what is "reasonable" under the EAJA. We therefore award fees and expenses to AWC in the amount of $43,910.16, which represents the reasonable amount to which AWC is entitled for the two phases of the proceedings in which the Secretary's position was not substantially justified.
The relevant facts surrounding OSHA's investigation of AWC's demolition practices are set forth in detail in our previous opinion. See Am. Wrecking Corp., 351 F.3d at 1257-58. Therefore, we will only briefly summarize these facts here.
AWC was selected as the subcontractor on a demolition project at the Steel Point Generating Station in Bridgeport, Connecticut ("Steel Point"). Under the supervision of Mr. Frank Bartolotti, AWC began demolition work in June 1995. By February 1996, work had begun on the demolition of the turbine generator building, a large steel-frame structure that formerly housed the generator area of the power plant. On February 27, 1996, two AWC employees were making preparatory cuts to the steel columns of the turbine building when the columns collapsed and several tons of bricks fell, killing one of the workers.
An OSHA compliance officer arrived at the scene soon after the accident and commenced a six-month investigation into AWC's safety practices. In August 1996, OSHA issued three citations to AWC. The first citation charged that AWC had not performed the requisite engineering survey of the structure prior to demolition, in violation of 29 C.F.R. § 1926.850(a) ("Engineering Survey Citation"). The second citation charged that AWC failed to remove all "loose material" from the steel skeleton of the building by leaving several tons of bricks suspended without support at the top of the south wall of the structure, in violation of 29 C.F.R. § 854(f) ("Bricks Citation"). The third citation charged that AWC permitted employees to work where deterioration and debris on the roof of the building created a hazard of falling material, in violation of 29 C.F.R. § 1926.859(g) ("Roof Citation"). All three citations were charged as "willful" violations, for which the Secretary proposed a penalty of $42,000 each.
After AWC contested the citations, the Secretary filed a complaint, and a six-day hearing was held before an Administrative Law Judge ("ALJ") in April 1997. The ALJ issued his first decision on May 27, 1998. See Am. Wrecking Corp., 1998 O.S.H. Dec. (CCH) ¶ 31,603 (O.S.H.R.C. 1998). The ALJ vacated the Engineering Survey Citation, finding that, in fact, AWC had prepared several analyses and reports prior to demolition and that the Secretary conceded that those documents satisfied the safety standard. Id. at *5-6. The ALJ affirmed the other two citations as willful violations and imposed penalties of $70,000 for each violation, the maximum penalty available under the Occupational Safety and Health Act, see 29 U.S.C. § 666(a) (1994).
Upon AWC's petition for discretionary review, the Commission vacated the Roof Citation, finding that the Secretary had not met her burden of proving that any AWC employees had access or exposure to the cited condition. See Am. Wrecking Corp., 19 O.S.H. Cas. (BNA) 1703, at *15 (O.S.H.R.C. 2001). As to the Bricks Citation, the Commission affirmed the ALJ's finding of liability, based on photographic evidence and expert testimony documenting the instability of the bricks suspended at the top of the south wall of the turbine building. Id. at *6-8. The Commission set aside the ALJ's determination as to willfulness, however, finding that the ALJ had failed to provide sufficient findings of fact and credibility determinations to support that holding. Id. at *12-14. The Commission remanded the case to the ALJ with specific instructions to reevaluate the evidence and reconsider the willfulness of the violation. Id. at *14. On August 23, 2002, the ALJ reaffirmed the finding of willfulness and reinstated the $70,000 penalty. See Am. Wrecking Corp., 19 O.S.H. Cas. (BNA) 2093 (O.S.H.R.C. 2002). The Commission's denial of AWC's petition for discretionary review made that decision a final order of the Commission.
AWC filed a petition for review in this court. We upheld the finding of liability as to the Bricks Citation, holding that "expert testimony and ... photographic evidence constitute[d] substantial evidence in support of the Commission's finding that AWC violated the loose material standard." Am. Wrecking Corp., 351 F.3d at 1262. We reversed the finding of willfulness, however, holding that the ALJ had "made no coherent credibility determinations to support such a finding" and had "ignored evidence that refute[d] his finding." Id. at 1265. We further held that the ALJ's willfulness holding was "flatly at odds with the controlling case law." Id. Thus, out of the three original citations for willful violations, for which the Secretary sought a total penalty of $126,000, and for which the ALJ initially imposed a total penalty of $140,000, AWC was ultimately found liable for only one non-willful violation, for which the maximum possible penalty is $7,000. See 29 U.S.C. § 666(b), (c). AWC now petitions this court for an award of fees and expenses pursuant to the EAJA.
Under the EAJA, a "prevailing party" in any civil action brought by or against the United States, "including proceedings for judicial review of agency action," is entitled to recover reasonable fees and expenses incurred in the proceeding. 28 U.S.C. § 2412(d)(1)(A). The prevailing party is not entitled to such fees and expenses, however, if the court finds that the position of the United States was "substantially justified." Id. Here, the Secretary does not dispute that AWC qualifies as a "prevailing party," insofar as AWC succeeded in having two of the three citations vacated completely and removing the "willful" designation from the third. AWC's entitlement to recovery thus depends on whether the ...