How A Case Proceeds Before The Commission - Equal Access to Justice Act Proceedings

The Equal Access to Justice Act, 5 U.S.C. § 504 (EAJA), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to administrative proceedings before the Commission. Generally, only “small” businesses are eligible for EAJA awards. In the case of a “prevailing party,” eligibility is based on number of employees and net worth, which are established in the Commission’s regulations. 29 C.F.R. § 2704.104(b). For purposes of an award to a non-prevailing party, eligible applicants are “small entities,” which is determined by the annual-receipts and number-of-employees standards in regulations of the Small Business Administration. 29 C.F.R. § 2704.104(c).

An eligible party may receive an award when it prevails over the Department of Labor’s Mine Safety and Health Administration (MSHA), unless the position of the Secretary of Labor was substantially justified, or special circumstances make an award unjust. In addition, a non-prevailing eligible party may receive an award if it has been subject to a demand from the Secretary that is substantially in excess of the decision of the Commission and unreasonable, unless the applicant party has committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award unjust.

The following chart summarizes the procedures when an EAJA application is filed. All references are to 29 C.F.R. Part 2704.

Applications for Fees and Expenses under the Equal Access to Justice Act (EAJA)

1	2		3	4	5
Application	Contents of Application		Answer or Joint Statement of Intent to Settle	Reply	Decision
	A	B
	Prevailing Party	Non-prevailing Party
*30 calendar days* after final Commission decision	Identify Secretary’s position not substantially justified; state type of business, number of employees, and net worth	Show Secretary’s demand is excessive and allege that it is unreasonable; show applicant is a “small business”	*30 calendar days* after service of application	*15 calendar days* after service of answer	*75 calendar days* after completion of proceedings
§ 2704.201 § 2704.206	§ 2704.202	§ 2704.203	§ 2704.302	§ 2704.303	§ 2704.307

Within 30 calendar days of a final decision, an applicant must file with the Chief Administrative Law Judge an application which identifies the underlying proceeding for which an award is sought and the amount of fees and expenses.
(A). An applicant who has prevailed in a Commission proceeding must identify the position of the Secretary that the applicant alleges was not substantially justified, describe its type of business, state the number of employees, and submit a detailed exhibit showing its net worth at the time of the underlying proceeding.
(B).An applicant who has not prevailed in a Commission proceeding but who has been subject to a demand from the Secretary must show that the Secretary’s demand is substantially in excess of the decision of the Commission and further allege that the demand is unreasonable when compared with the decision; the applicant must show that it is a “small business” as defined by 5 U.S.C. § 601(6).
The Secretary must file an answer to the application within 30 calendar days of service of the application, or the Secretary and the applicant may jointly file an intent to negotiate a settlement which shall extend the time to file an answer by 30 days.
The applicant may file a reply to the answer within 15 calendar days of service of the answer.
The Judge must issue a decision on the application 75 calendar days after the completion of proceedings on the application.

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