*Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4. United States Court of Appeals Fifth Circuit 

## FILED March 22, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________ No. 06-60815 Summary Calendar

__________________________ AQUATEK SYSTEMS INC, Petitioner,
versus OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.

___________________________________________________

Petition for Review from the Occupational Safety and Health Review Commission

(No. 03-1351)

___________________________________________________ Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM: * Before the court is an appeal from the administrative law judge’s denial of Aquatek’s application for legal fees and expenses under the Equal Access to Justice Act (“EAJA”). 5 U.S.C. § 504. For the following reasons, we affirm.2 I. FACTS AND PROCEEDINGS Aquatek is a four-person company in the business of waterproofing. Ken Morris is the owner and presidentofAquatek, and his brother Ronnie Morris is the foreman. The other two employees work under Ronnie Morris doing waterproofing. On January 7, 2003, Ronnie Morris and these two employees were waterproofing
a building. During the course of this job, they reached a point at which it was time to work
on the second floor balconies. Unlike the balconies on which they had previously worked during thisjob, some of these balconies lacked guardrails. Working on such a balcony without guardrails violates Occupational Safety and Health Administration (“OSHA”) rules. Nevertheless, Ronnie Morris instructed the employees to work on these balconies in order to complete the job on time. While they were working, an OSHA compliance officer arrived and photographed them. The OSHA compliance officer, after interviewing Ronnie and Ken Morris, issued
a citation for the violation. Aquatek admitted the violation but raised the affirmative defense of unf

oreseen employee misconduct. An administrative law judge (“ALJ”) determined that the citation was proper and rejected this defense, noting that Aquatek’s safety program was not written and that Aquatek had failed to prove adequate enforcement. On appeal, the Occupational Safety and Health Review Commission (“Commission”) reversed theALJ and vacated the citation. The Commission held that the safety policy did not have to be in writing and that enforcement had been adequate. After this vacatur, Aquatek filed an application for legal fees and expenses under3

the EAJA. 5 U.S.C. § 504. The ALJ denied the application on the basis of substantial justification. Aquatek appealed. II. STANDARD OF REVIEW This court reviews the ALJ’s determination to see if it was based on substantial evidence. S

ee United Bhd. ofCarpenters& Joinersof Am., Local 2848v. NLRB , 891 F.2d 1160, 1162 (5th Cir. 1990). In searching for substantial evidence, the court need not find “a large or considerable amount of evidence, but rather such rel evant evidence as a reasonable mind mightacceptasadequate to supporta conclusion.” P ierce v. Underwood, 487 U.S. 552, 564–65 (1988) (internal quotation omitted). III. DISCUSSION The EAJA permits recovery of legal fees and expenses in certain cases after prevailing in a lawsuit. “An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, feesand other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.” 5 U.S.C. § 504(a)(1). The only disputed issue is whether the Secretary was substantially justified in her position. The Secretary’s position need not prevail in the underlying proceeding in order to be substantially justified. S ee S&H Riggers & Erectors, Inc. v. Secretary of Labor , 672 F.2d 426, 430 (5th Cir. 1982). Aquatek prevailed, despitethe existence ofa primafaciecaseofan OSHA violation, based on the affirmative defense of unforeseen employee misconduct. “The affirmative4

defense of employee misconduct requires a showing that the employer 1) has established work rules designed to prevent theviolation, 2) hasadequately communicated these rules to its employees, 3) has taken steps to discover violations, and 4) has effectively enforced the rules when violations have been discovered.” W .G. Yates & Sons Constr. Co. v. Secretary of Labor, 459 F.3d 604, 609 n.7 (5th Cir. 2006). The evidence the appellee cites is the lack of a written safety program, the fact that Ken Morris only verbally reprimanded Ronnie Morris, the unanimit y of the conduct in violating the OSHA rule, and a supervisor’s willingness to violate a rule. In addition, Aquatek bore the burden of persuasion on the affirmative defense and essentially stipulated to the primafacieevidence ofa violation. S eeid. Aquatek is correct to state that the lack of immediate supervision of this particular project by Ken Morris and the failure to have writ

ten safety rules does not defeat the affirmative defense of employee misconduct. Nevertheless, there was substantial evidence on which the ALJ could conclude that the Secretary was substantially justified in pursuing the action. S eePierce , 487 U.S. at 565. IV. CONCLUSION The judgment of the ALJ is AFFIRMED.