Cobra
Roofing Service v. Dept of Labor & Industries, 122
In February 2000, an inspector
from the Department of Labor and Industries issued citations to Cobra Roofing
Services for safety violations at a school remodeling site. A hearing
examiner affirmed the citations, and Cobra appealed to the Board of Industrial
Appeals. The Industrial Appeals Judge affirmed certain citations and
reversed others.
Relying on the Equal Access to
Justice Act (EAJA), RCW 4.84.350(1), Cobra moved for attorneys fees and costs
incurred in defending against the citations. The Board rejected the
request, concluding that the EAJA does not authorize such an award for
prevailing before the Board. The Board also affirmed certain violations
and reversed others.
Cobra filed a notice of appeal in
Superior Court regarding the citations and moved for attorneys fees and costs.
The court concluded the Department erred in determining that one citation was a
repeat violation. The court held that while Cobra was not entitled to
attorneys fees and costs under the EAJA for work before the Board, it was
entitled to fees and costs incurred in that court, because Cobra prevailed
on the repeat violation issue for purposes of the EAJA. On
reconsideration, the court concluded that both sides prevailed on significant
issues and therefore denied Cobra’s fee request.
Division Three first reviewed
whether the Board erred s to one of the citations it issued. The court
applied the "substantial evidence" standard in reviewing the Board’s
findings. The Washington Industrial Safety and Health Act (WISHA) defines
a “repeat violation” as being based on “the same type of hazard.”
The court found substantial evidence that the previous violation was
substantially similar to the current violation to render it a repeat violation.
Division Three next concluded that while the EAJA does not authorize the Board to award attorneys fees and costs to a prevailing party in a WISHA case, the EAJA does apply to judicial appeals of Board decisions. Division Three then used an abuse of discretion standard to determine whether review the superior court’s decision on whether to award fees and costs under the EAJA. It concluded that Cobra was not entitled to fees and costs because there was a repeat violation and Cobra thus did not ultimately prevail on the merits