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EAJA Allows Winning Parties to Recoup Attorney Fees

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The Equal Access to Justice Act (EAJA) was permanently enacted in 1985 to deter government overreach and wrongdoing. It allows individuals and entities to be awarded attorney fees and expenses when they are prevailing parties to administrative proceedings before the Occupational Safety and Health Administration's (OSHA) Review Commission. These proceedings are typically contests to citations, notifications, penalties, or abatement periods by employers. To be eligible for attorney fees and expenses under EAJA, parties are required to apply, “no later than thirty days after the period for seeking appellate review expires.” Contesting parties may also be corporations with a net worth less than $7 million that employ no more than 500 employees.


Henry Marine Service, Inc. attempted to utilize the EAJA, by seeking an award of attorney fees and expenses it incurred when litigating a Citation and Notification of Penalty it received from the Occupational Safety Health Review Commission. An employee was found dead in the water near a tugboat owned and operated by Henry Marine Service, Inc. After an investigation, it was determined the employee died from drowning as a result of the employee attempting to board the tugboat and experiencing a head laceration. A Compliance Safety and Health Officer inspected the tugboat worksite and determined the tugboat had the hazard of hitting objects while falling to the water. The officer recommended Henry Marine Inc. be cited for failure to provide a safe means of access to a working surface and for failure to provide flotation devices as personal protective equipment to its employees. The issue at hand was whether the Coast Guard’s promulgation of regulations for which it explicitly delayed implementation constitutes exercise of its authority as used in 4(b)(1) of the Occupational Safety and Health Act. Henry Marine Inc. argued the Coast Guard exercised its authority to regulate health and safety of persons working on towing vessels upon promulgation of the Subchapter M regulations. The Secretary of Labor however noted the Coast Guard did not exercise its authority to regulate working conditions on towing vessels because it was not required to comply with those regulations until July 2018, after the accident happened.

The administrative judge sided with Henry Marine’s argument that the Coast Guard properly exercised its authority to regulate the working conditions on Henry Marine’s tugboat. What was at issue in this decision was whether the Coast Guard’s promulgation of regulations it explicitly delayed implementation constitutes an exercise of its authority as used in 4(b)(1) of the Occupational Safety and Health (OSH) Act of 1970. An agency’s promulgation of final regulations under its grant of authority constitutes an exercise of that authority under 4(b)(1) of the OSH Act. The Commission did not directly address whether an agency has exercised its authority upon issuance of a final regulation where the regulation sets out a delayed implementation schedule. It instead argued, “it is no less an exercise of statutory authority to take formal position that a hazard will not be the subject of regulation.”

When taking into consideration the Memorandum of Understanding (MOU) between the Secretary of Labor and Coast Guard, the Coast Guard’s authority was recognized as including working conditions on inspected vessels pertaining to Coast Guard regulations as well as working conditions not addressed by those regulations. This MOU allows for the Coast Guard to exercise its authority within the meaning of 4(b)(1) of the OSH Act. The Coast Guard chose to delay implementation of its regulations. The judge concluded the Coast Guard’s promulgation of its regulations prior to the date of the health and safety violations was a sufficient exercise of its authority to regulate working conditions, preempting OSHA jurisdiction.

Opposition to Application for Expenses

The Secretary of Labor opposed Henry Marine Inc.’s application for expenses. The Secretary argued the EAJA fees should be denied because he was justified in the prosecution. In doing so, the Secretary bears the burden of proving he was substantially justified for bring action against Henry Marine Inc. The Secretary’s actions are substantially justified if it has a reasonable basis in both law and fact.” This is accomplished if the justification would satisfy a reasonable person. The Secretary again contends “he was substantially justified in his position that OSHA, and not the Coast Guard, had jurisdiction over the cited working conditions.”

The judge described the issue of whether the Coast Guard’s promulgation of regulations for which its delayed implementation as novel to the Commission. Courts favor Government’s position when novel issues present a dispute where “reasonable people could differ” regarding the appropriateness of the Government’s actions. In a reversal with the judge’s original judgment for Henry Marine Inc., the Administrative Judge found the Secretary was substantially justified in bringing action in this case and denied Henry Marine’s application.


It is reasonable to find the Administrative Law Judge’s denial of Henry Marine Service Inc.’s EAJA application confusing. The judge first granted summary judgment for Henry Marine for finding the Coast Guard preempted OSHA’s jurisdiction, but then denied the application for EAJA because he held that Secretary was justified in bringing action against Henry Marine Service Inc. The intricacies of laws that allow for opportunities to recover for attorney’s fees may be difficult to discern at times. This is one of the reasons why the help of experts at Whitcomb, Selinsky Law, PC can best serve your needs in health and safety. Contact us at (303) 534-1958 or complete an online contact form for more information on how best we might serve you.

About the AuthorWhitcomb, Selinsky, PC

Whitcomb, Selinsky, PC is a full service law firm serving clients’ diverse legal needs. Our focus is in helping people in their interactions with federal, state and local governments.


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