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USDOL/OALJ Reporter
Ass't Sec'y &
Champlin v. Florilli Corp., 91-STA-7 (Sec'y Oct. 22, 1992)
DATE: October 22, 1992
CASE NO. 91-STA-0007
IN THE MATTER OF
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
AND
LARRY L. CHAMPLIN,
COMPLAINANT,
v.
FLORILLI CORP.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL ORDER DENYING FEE APPLICATION
On August 3, 1992, the Administrative Law Judge (ALJ) issued
a [Recommended] Order Denying Fee Application in this case
arising under the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1988). Pursuant to the
regulations implementing the STAA, the case is now before me for
review. 29 C.F.R. § 1978.109(a) (1991). Although the
regulations permit the parties to file briefs in response to the
ALJ's decision, no briefs have been filed before the Secretary.
See 29 C.F.R. § 1978.109(c)(2).
The application for a fee award was made by Respondent
pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C.
§ 504 (1988). Under the EAJA, a party that prevails over a
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United States government agency in an adversary adjudication is
entitled to a fee award unless the agency's position was
substantially justified or special circumstances make an award
unjust. 5 U.S.C. § 504(a)(1). The Assistant Secretary of
Labor for Occupational Safety and Health filed a brief objecting
to Respondent's fee application on numerous grounds. Upon
consideration, the ALJ found that Respondent was not the
prevailing party in this suit and that the Assistant Secretary
had a sufficient basis to make the preliminary finding of a STAA
violation. He, therefore, ruled against Respondent's
application.
The threshold question of whether the EAJA is applicable at
all to proceedings brought under the STAA was not addressed by
the ALJ or the parties. The question is one of first impression
but is also one which I need not now decide in order to resolve
this case. I, therefore, decline to discuss or specifically
decide the broad issue of whether the EAJA is available generally
to respondents under the STAA. It is clear that even if the EAJA
applies, Respondent's request for a fee award must be denied
because under the facts of this case, the EAJA standards have not
been met.
First, Respondent was not the prevailing party in this
litigation. On May 20, 1992, I issued a Final Decision and Order
(F.D. and O.) dismissing the underlying complaint on the basis of
the parties' settlement agreement. I refused to accept the ALJ's
recommendation on the merits, which were in Respondent's favor,
and I accepted the settlement that had been proffered by the
parties, but refused by the ALJ, in the early stages of
litigation. The ALJ's recommended findings and conclusions on
the merits are, therefore, of no force or effect. 29 C.F.R.
§ 1978.109(c); see In the Matter of Otamot,
Inc., Case No. 88-FLS-2, Act. Adm. Fin. Dec. and Ord., Nov.
30, 1990, slip op. at 4-6. Furthermore, the determination of
"prevailing party" status is not bifurcated by issues or facets
of litigation. See Texas State Teacher's Assoc. v.
Garland Independent School District, 489 U.S. 782, 790
(1989); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983);
Clymore v. Far-Mar-Co, Inc., 576 F. Supp. 1161,
1164 (W.D. Mo. 1983). Thus, the fact that Respondent may have
been victorious on various motions, alone, is not determinative.
Through the settlement, Respondent voluntarily afforded
Complainant some of the relief originally sought -- monetary
relief and a forum for expressing his concerns about compliance
with driver safety rules -- and thus, Respondent did not prevail.
[1] Cf. Hewitt v. Helms, 482 U.S. 755, 760-61
(1987); Lyte v. Sara Lee Corp., 950 F.2d 101, 104 (2d Cir.
1991); Chicano Police Officer's Association v. Stover, 624
F.2d 127, 131 (10th Cir. 1980); Rohrer v. Slatile Roofing and
Sheet Metal Co., Inc., 655
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F. Supp. 736, 729 (N.D. In. 1987).
The complaint was not frivolous or groundless, and I agree
with the ALJ that the Assistant Secretary had sufficient grounds
for his preliminary findings. The Assistant Secretary was
substantially justified in finding reasonable cause to believe
a violation had been committed. The fact that the Assistant
Secretary subsequently was willing to settle the case is not
decisive here. See Pierce v. Underwood, 487 U.S.
552, 568 (1988). The Findings and Preliminary Order clearly
reveal facts and allegations tending to establish that
Complainant's discharge was retaliatory in violation of Section
2305 of the STAA. The ALJ's contrary decision turned on a
credibility determination, which does not deprive the Assistant
Secretary's legal position on the merits of substantiality.
Temp Tech Industries, Inc. v. NLRB, 756 F.2d 586, 590 (7th
Cir. 1985); see ALJ's [Recommended] Decision and Order,
dated July 23, 1991, at 5.
Finally, an award against the agency is not warranted
because the Assistant Secretary was not responsible for
protracting this litigation. Cf. Love v. Reilly,
924 F.2d 1492, 1495-96 (9th Cir. 1991); San Diego Regional
Employment and Training Consortium v. Chicano Federation,
Case No. 80-CET-212, Sec. Fin. Dec. and Ord., May 1, 1991, slip
op. at 6, 10. Both Respondent and the Assistant Secretary had
pleaded to the ALJ for the litigation to end on the basis of the
settlement agreement. Contrary to Respondent's argument, the
Assistant Secretary did not force the matter to hearing. The ALJ
required the parties to proceed. [2] Although at the hearing
counsel for the Assistant Secretary changed her tact on the
settlement issue, she reasonably did so in the wake of the ALJ's
prehearing adverse rulings and Complainant's last-minute
assertions. [3]
Accordingly, the relief requested by Respondent IS DENIED.
SO ORDERED.
LYNN MARTIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] In accepting the settlement, I relied largely on the
affidavit submitted by counsel for the Assistant Secretary, as
corroborated by counsel for Respondent. F.D. and O. at 5.
Counsel for the Assistant Secretary avowed that the settlement
terms were the Complainant's terms, that Complainant
affirmatively represented that he "didn't care about the money,"
and that Complainant had "consistently told [counsel that] he
filed his 405 complaint because he was concerned about driver and
public highway safety." Prosecuting Party's Response to Second
Procedural Order at 4-5; see F.D. and O. at 3. Counsel
stated that "what [Complainant] did care about wholeheartedly was
an opportunity to express his views on driver safety (and
concomitantly public safety)" to Respondent. Respondent's
counsel also indicated that Complainant insisted on having an
opportunity to voice his concerns about safety in the trucking
industry. Letter of Thomas P. Schlapkohl, dated March 20, 1991,
at 2; F.D. and O. at 3.
[2] At this point I note that to the extent Respondent casts the
ALJ as a member of "the agency" potentially liable under the
EAJA, Respondent is mistaken. An administrative law judge is a
purely adjudicative officer excluded from the reach of the EAJA.
In re Perry, 882 F.2d 534, 539-40 (1st Cir. 1989), and
cases cited therein; see 29 C.F.R. §§ 18.1,
18.2(b) (1992).
[3] Shortly before the hearing, and at the suggestion of the
ALJ, Complainant employed independent counsel. Consequently, the
litigation would have continued even if the Assistant Secretary
had declined to continue. 29 C.F.R. § 1978.107(a).
