DATE:  December 14, 1994

CASE NO: 93-STA-23

In the Matter of

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,

               Prosecuting Party

     and

TIMOTHY WALDREP,

               Complainant

     v.

PERFORMANCE TRANSPORT, INC.,

               Respondent.




APPEARANCES (On Brief):

Susan E. Foster, Esq.    
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd.
Suite B-201
Nashville, TN 37215-2862
   For the Prosecuting Party

Stanley A. Kweller, Esq.
Robert L. Jackson & Associates
One Washington Square
[PAGE 2]
214 Second Avenue, North
Suite 103
Nashville, TN 37201
   For the Respondent

James A. Purdy, Esq.
King & Ballow Law Offices
1200 Noel Place
204 Fourth Avenue, North
Nashville, TN 37219
   For the Respondent

BEFORE: DONALD W. MOSSER
        Administrative Law Judge

              SUPPLEMENTAL DECISION AND ORDER

     I issued a Decision and Order in this case on December 23,
1993 concluding that complainant, Timothy Waldrep, did not estab-
lish that Performance Transport, Inc. violated the Surface
Transportation Assistance Act of 1982 (STAA) when it discharged
him.  The Secretary of Labor affirmed that decision and dismissed
the complaint of Mr. Waldrep.  Waldrep v. Performance
Transport, Inc., Case No. 93-STA-23, Sec'y Dec. (April
6, 1994).
     Respondent's counsel, Stanley A. Kweller, filed an applica-
tion for fees and expenses, together with a supporting memoran-
dum, on June 2, 1994.  Counsel argues in these documents that he
is entitled to fees and costs pursuant to 28 U.S.C. § 2412. 
Mr. Kweller is requesting an attorney's fee at the rate of at
least $100.00 per hour for 113.15 hours, or $11,315.00 for an
attorney fee, plus ,029.38 for expenses.  Co-counsel, James A.
Purdy, indicates in an attached affidavit that fees and expenses
incurred for his services amount to $8,071.24 at the rate of
$150.00 per hour for 50.64 hours.
     The attorney for the Assistant Secretary of Labor for
Occupational Safety and Health filed a Motion to dismiss Respon-
dent's Application for Costs and Fees on June 10, 1994.  Counsel
initially argues that respondent's application should be dis-
missed because it is procedurally defective.  She also states
that 28 U.S.C. § 2412 pertains to the awards of fees and
expenses for eligible prevailing parties in judicial proceedings
rather than administrative proceedings.  She points out that 5
U.S.C. § 504 is pertinent to this case.  Counsel then goes
on to explain 
[PAGE 3]
her client's position as to why respondent's application is
defective.
     By letter dated June 14, 1994, respondent's counsel filed a
Supplemental Application for Costs and Fees, together with a
statement of applicant/respondent and supporting data.  Mr.
Kweller, without conceding that his previous application for
costs and fees was incorrect, noted that the provisions of 5
U.S.C. § 504 may apply to this proceeding.  He therefore
submitted additional materials to conform with the requirements
of that section and to support his seeking an award of fees and
costs totaling $17,884.12.
     Counsel for the prosecuting party filed a motion to dismiss
respondent's application for costs and fees and supplemental
application for costs and fees on July 14, 1994.  Counsel also
submitted a memorandum in support of the motion to dismiss,
together with supporting exhibits.  The arguments advanced in
this motion will be addressed in the conclusions section of this
decision.
                        Conclusions

     Initially, I agree with counsel for the prosecuting party
and find that 5 U.S.C. § 504 pertains to an award of fees
and expenses in administrative proceedings rather than 28 U.S.C.
§ 2412.  Dole v. Phoenix Roofing, Inc.,
922 F.2d 1202, 1205 (5th Cir. 1991).  The Equal Access to Justice
Act (EAJA) provides in pertinent part: 

     An agency that conducts an adversary adjudication shall
     award, to a prevailing party other than the United States,
     fees and other expenses incurred by that party in connection
     with that proceeding, unless the adjudicative officer finds
     that the position of the agency was substantially justified
     or special circumstances make an award unjust.  

5 U.S.C. § 504(a)(1).  

     The Secretary of Labor has held that he has no authority to
award attorney's fees and costs when he has found in favor of a
respondent under Section 405 of the STAA.  Abrams v.
Roadway Express, Inc., Case No. 84-STA-2, Sec. Dec.
(May 23, 1985), Slip Op. at 1-2. In fact, the employee protection
provisions of the various environmental and nuclear statutes
covered under 20 C.F.R. Part 24 do not provide for an award of
attorney's fees against a complainant, but only
for a successful complainant.  See Crosby
v. Hughes Aircraft Co., 
[PAGE 4]
Case No. 85-TSC-2, Sec'y Dec. (Aug. 1, 1993) (emphasis added);
Rogers v. Multi-Amp Corp., Case No. 85-ERA-16,
Sec'y Dec. (Dec. 18, 1992); Hasan v. Nuclear Power
Services, Inc., Case No. 86-ERA-24, Sec'y Dec. (June
26, 1991).  Since I cannot award attorney fees to the respondent
in this case, the arguments of the parties are moot. 
     Assuming arguendo that I did have the
authority to award attorney fees to the respondent, the focus of
the decision would be on the procedural sufficiency of the
application and the question of whether the position taken by the
prosecuting party was substantially justified. 
     Respondent's counsel argues in his application and supple-
mental application that the position taken by the Assistant
Secretary of Labor for Occupational Safety and Health, as the
prosecuting party, was not substantially justified as that term
is defined by 28 U.S.C. § 2412(d)(1)(A).  In support of the
application, the respondent submitted an itemized statement of
expenses and affidavits of attorneys Stanley A. Kweller and James
Purdy, which show the actual time expended and the rate at which
their fees were computed.  Along with its supplemental applica-
tion, the respondent submitted a statement signed by Lance
Sumrell, Secretary/Treasurer of the respondent, in which Mr.
Sumrell indicates that the respondent has a net worth of less
than $5,000,000.00 and has less than 500 employees.  
     I reiterate that in support of the motion to dismiss, the 
Assistant Secretary of Labor for Occupational Safety and Health
argues that there are several procedural defects with the appli-
cation.  First, she notes that an application must include a
detailed exhibit showing the net worth of the applicant as of the
date the proceeding was initiated, i.e., the
date the complaint was filed.  29 C.F.R. § 16.202(a).  In
this case, the applicant included a balance sheet showing its net
worth as of March 31, 1993, but the complaint was filed with the
Secretary of Labor on March 6, 1992.  Additionally, the attorney
for the prosecuting attorney argues that the statement of attor-
ney's fees for services performed by James A. Purdy does not meet
the requirements set forth at 29 C.F.R. § 16.203(b) because
it is neither signed nor notarized, nor contains the necessary
specificity of itemizing  the number of hours rendered for each
service.  
     I agree with the prosecuting party that the application is
defective for failure to include the net worth of the applicant
as of the date the complaint was filed.  The regulations clearly 
[PAGE 5]
require such information.  I also agree that the affidavit from
Mr. Purdy is defective for the reasons asserted.  Mr. Kweller's
affidavit is procedurally correct, so if fees were allowed in
this case and the other procedural defects absent, his affidavit
would satisfy the requirements of the regulations.     
     Counsel for the Assistant Secretary argues that the position
of the United States was substantially justified, and for that
reason, fees and costs should not be awarded.  For the position
of the prosecuting party to be substantially justified, it must
have a reasonable basis in both law and fact, that is, if a
reasonable person could think it correct.  Pearce v.
Underwood, 108 S.Ct. 2541 (1988).  The Sixth Circuit
Court of Appeals has refused to hold that the government's
failure to prevail on the merits means that its position was not
substantially justified.  See U.S. v. Real Property
located at 2323 Charms Road, 946 F.2d 437 (6th Cir.
1991); Wyandotte Savings Bank v. NLRB, 682 F.2d
119, 120 (6th Cir. 1982).  In Wyandotte, the
court noted that "[i]t was not the intent of Congress to stifle
the reasonable regulatory efforts of federal agencies by the
enactment of the EAJA."  Id.  
     Respondent argues that the position of the United States was
not substantially justified because the Assistant Secretary
should have known that the complainant was not a credible wit-
ness.  It contends through counsel that the government was aware
of the tendency of the complainant to lie and cheat early on in
its investigation.  The respondent also maintains that the
government's position was not substantially justified because the
prosecuting party did not object to my findings and order in this
matter. 
     Counsel for the Assistant Secretary argues that the
government's position was substantially justified because the
investigation gave the government cause to prosecute the case. 
The prosecuting party relied on the statements made by several
key witnesses in determining there was reasonable cause to
believe that complainant was discriminatorily discharged.  She
contends, however, that some of these key witnesses changed their
testimony once on the stand.  Additionally, the prosecuting party
notes that my decision and order was automatically appealed to
the Secretary of Labor pursuant to 29 C.F.R. § 1978.109(c)
and that the Assistant Secretary's election not to file a brief
on appeal is irrelevant to a substantial justification determina-
tion. 
     In the instant case, the government's position was that the
respondent violated Section 405(b) of the STAA for disciplining 
[PAGE 6]
an employee "for refusing to operate a vehicle when such opera-
tion constitutes a violation" of the Department of Transporta-
tion's regulations.  To make out a prima facie
case of retaliatory discharge under the STAA, the complainant
must prove that he engaged in protected activity, that he was
subject to adverse employment action, that the employer was aware
of the protected activity, and that there was a causal link
between the protected activity and the adverse action. 
Moon v. Transport Drivers, Inc., 836 F.2d 226,
229 (6th Cir. 1987).  The government's investigation disclosed
that there was substantial justification for its position.  That
the hearing revealed that Mr. Waldrep was not a credible witness
does not detract from the government's position.  The hearing
itself was necessary to elucidate the positions of both parties
and the credibility of all witnesses.  
     The prosecuting party also argues that the investigation re-
vealed that Mr. Waldrep falsified his log books, but allegedly at
the request of respondent's president.  Counsel therefore main-
tains that such falsification does not affect the reliance the
prosecuting party had on the complainant's credibility.  Respon-
dent counters by contending that the prosecuting party should
have doubted complainant's credibility based on other evidence.
     At the hearing in this case, I denied respondent's motion
for a directed verdict because I was unable to determine the
outcome of the case after only the presentation of the prosecut-
ing party's case in chief.  The conclusions reached in the
decision were based largely on credibility determinations made at
or after the hearing.  Those determinations and resulting deci-
sion in favor of respondent do not mean that the prosecuting
party's position was not substantially justified.  I therefore
agree with the Assistant Secretary that the government's position
was substantially justified.  For that reason, no fees and
expenses would be awarded in this case. 
     The EAJA provides that attorney fees should not be awarded
in excess of seventy-five dollars ($75.00) per hour unless the
agency determines by regulation that an increase in the cost of
living or a special factor, such as the limited availability of
qualified attorneys or agents for the proceedings involved,
justifies a higher fee.  5 U.S.C. § 504(b)(1)(A).  "Quali-
fied attorneys" means to attorneys who are qualified for the
proceedings in some specialized sense, rather than just in their
general legal competence.  Such attorneys must possess distinc-
tive knowledge or specialized skill needful for the litigation in
question, as opposed to an extraordinary level of general lawyer
[PAGE 7]
ly knowledge and ability useful in all litigation.  See
Pearce, supra.  
     The regulation at 29 C.F.R. § 16.107(c) specifically
provides that "[n]o award under these rules for the fee of an
attorney or agent may exceed $75.00 per hour.  The respondent
argues that any award of attorney fees should be based on an
hourly rate of not less than $100.00 per hour.  Such a request
goes beyond the regulatory requirements.  Moreover, respondent's
counsel have not established that they meet the requirements for
special qualifications.  
     In conclusion, I find that I have no authority to award
attorney's fees to the prevailing respondent under the control-
ling statute.  If I were authorized to award such fees, the
respondent's request would have to be denied because of procedur-
al defects in its application and because the position of the
government was substantially justified.  Finally, fee requests
are not to exceed the rate of $75.00 per hour.  
                           ORDER
     For the above-stated reasons, IT IS HEREBY ORDERED that the
prosecuting party's motion to dismiss respondent's application
and supplemental application for costs and fees is granted.


                              DONALD W. MOSSER
                              Administrative Law Judge