OPINION: Wal-Mart draws a line in the sand

It's quite a role reversal: This time it's the feds complaining about getting dragged into court, having to file time-consuming paperwork, and generally being treated like an unlucky taxpayer who got crossed with the IRS.

It seems Wal-Mart, the 800-pound gorilla of retailers, is challenging a fine placed upon it in connection with the death of seasonal worker Jdimytai Damour, who was trampled to death at a Wal-Mart store in Valley Stream on Black Friday 2008. The poor guy was overrun by a mob rushing into the store for the biggest shopping day of the year.

The company settled a case with Nassau County's district attorney and has taken all kinds of precautions on its own to assure that such a thing never happens again, adopting new crowd-control standards for all its outlets in this country. But an additional $7,000 fine from the federal Occupational Safety and Health Administration was the catalyst that sent Wal-Mart into a lawsuit frenzy.

At last estimate, Wal-Mart has spent more than a million dollars fighting this relatively modest fine, claiming no one could have foreseen the danger at the time, and that it's being punished for violating an arbitrary standard that didn't exist at the time. Also, according to Wal-Mart, the citation from OSHA "has far-reaching implications for the retail industry that could subject retailers to unfairly harsh penalties and restrictions."

What makes the situation unique is that Wal-Mart has the resources to fight back. It may be the only outfit in the country with more lawyers in its employ than this branch of the Labor Department. The feds seem to have picked on an outfit their own size, if not bigger. And OSHA doesn't like it, not at all.

Officials at the Department of Labor say that over the past five months 17 percent of the available attorney hours in its New York office have been devoted to this one case, or the equivalent of five full-time lawyers. This is apparently a first for OSHA. By now Wal-Mart has filed at least 20 motions in these protracted proceedings - much to OSHA's consternation. Its people have an agency to run, you know, and lots of other things to do besides reply to Wal-Mart's stream of court filings.

You'd think OSHA would have its hands full investigating industrial accidents instead of feuding with Wal-Mart over a freak accident, however horrifying. But, now and then, a private company will have the resources and the will to stick up for itself. And Wal-Mart tends to go all out in such instances, whether challenged by a frivolous lawsuit or some bureaucratic annoyance. Its stance in these matters is much the same as Winston Churchill's during the Blitz: Never give in. Not on a matter of honor or principle.

Whatever one thinks of the legalities involved in this dispute, there's no denying the irony of it. Or the justice. In this role reversal, the regulators suddenly find themselves regulated, or at least challenged. The mystification of the Labor Department is familiar to any harried businessman, or taxpayer, who's forced to hire a platoon of lawyers, with a squad of CPAs to back them up, to defend his rights.

Once again, there are those in the forefront of public life who think that the magical solution to all the country's fiscal ills lies in just taxing and regulating businesses. Let no profitable enterprise alone, and keep issuing unrealistic citations. But something strange is happening on the way to the usual "You can't fight the feds" conclusion of this familiar story: Wal-Mart is fighting back.

Legal fees? Litigation? That's usually for private enterprise to worry about, not government operations. But at least some federal bureaucrats are beginning to know what it feels like.