Venblack, Inc.

Plain-English summary

Venblack, Inc. applied for attorney fees and costs under the Equal Access to Justice Act after prevailing in an underlying contest and related penalty proceeding. The company argued that the Secretary's position was not substantially justified. Judge Michael A. Lasher, Jr. found that the Secretary had a reasonable basis in law and fact, noting that the governing law was unsettled and that existing precedent supported the Secretary's position. He denied Venblack's application and dismissed the fee proceeding. The order did not rule on Venblack's request to keep confidential financial information sealed.

Decision snapshot

• Governing provision: 28 U.S.C. § 2412.
• Outcome: The EAJA application for fees and costs was denied, and the proceeding was dismissed.
• Key point: EAJA fees were denied because the Secretary's position was substantially justified in law and fact.

Full text (FMSHRC public release)

CCASE:
VENBLACK INC v. SOL (MSHA)
DDATE:
19850909
TTEXT:

Page 2

~1392
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges

VENBLACK, INC., CONTEST PROCEEDING
CONTESTANT
Docket No. EAJ 85-1
v.
Austin Black Plant
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
RESPONDENT

                              DECISION

Appearances: J. Edgar Baily, Esq., George V. Gardner, Esq.,
Roanoke, Virginia,
for Contestant;
James B. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent;
Mr. Bobby L. Lawson, Venblack, Inc., Raleigh County,
West Virginia,
Representative of Employees.

Before: Judge Lasher

 This matter arises on the application of counsel for

Contestant, VenBlack, Inc., for an award of attorney's fees and
costs arising from their representation in a contest proceeding,
VenBlack, Inc., v. Secretary of Labor, WEVA 84-152-R, and a
related penalty proceeding. Contestant cites Section 204(a) of
the Equal Access to Justice Act, (EAJA), 28 U.S.C. 2412, as
authority for the relief requested and asserts that the
Secretary's position "was not substantially justified." The
Secretary opposes the application on the basis that its position
was substantially justified. Both parties have submitted a
memorandum in support of their position.

 Although the EAJA was repealed effective October 1, 1984,

pursuant to a savings provision therein the application was not
vitiated since the underlying contest/penalty proceedings were
initiated before the date of repeal. It should be noted that
there is no provision in the Mine Safety and Health Act of 1977
for an award of attorney fees except in discrimination cases.

 The issue in the underlying proceedings was not whether the

Contestant should be regulated by the Secretary of Labor but
whether the Secretary should wear his OSHA hat or MSHA hat in
doing so. The Contestant, the party which ultimately prevailed,
took the position that it should be regulated by OSHA, presumably
a less severe regulating authority than the Mine Safety and
Health Administration.

Page 3

~1393
At the time the matter was in litigation, no judicial or
Commission decision or authority was in existence which
inevitably or predictably forecast an outcome in favor of
Contestant, VenBlack. Indeed, the opposite was true. A
considerable portion of the decision of the Administrative law
judge (the undersigned) was spent in distinguishing the case of
Donovan v. Carolina Stalite Company, 734 F.2d 1547 (D.C.Cir.,
1984) which was unfavorable to the position of Contestant and
lent strong support to the Secretary's. Carolina Stalite appeared
to be the governing precedent throughout the trial stage and much
of the post-hearing stage.

 The contentions of the Secretary (listed at page 8 of the

ALJ decision) were not unreasonable. Nor can it be said that the
Secretary's action was inconsistent (FOOTNOTE.1) since MSHA had
regulated Contestant's operation in the recent past albeit under
different conditions.

 Significantly, at the end of the ALJ decision, the following

observation was made:

     This proceeding involves difficult issues and the
     positions of the parties both have some merit in the
     present stage of the development of the law on the
     subject.

 In view of the foregoing, one is constrained to conclude

that both at the time of the Secretary's initiation of MSHA's
regulatory processes with regard to Contestant and at the time of
the administrative litigation a reasonable basis in both law and
fact existed which supported the Secretary's position.
Substantial justification for the Secretary's action and position
are thus found to have existed. The points and authorities set
forth in the Secretary's memorandum in support of his answer to
the application are found meritorious and by reference are
incorporated herein as part of this decision. VenBlack, Inc's
application is denied (FOOTNOTE.2) and this proceeding is dismissed.

                           Michael A. Lasher, Jr.
                           Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE:-

~Footnote_one

 1 There is no contention or indication that the Labor

Department has acted oppressively or in bad faith in this matter.

~Footnote_two

 2 In view of this decision no ruling is made with respect to

VenBlack's motion to withhold Confidential Financial Information
from public disclosure and the same remains in a sealed envelope
in the official case folder.