Contractors Sand and Gravel, Inc. (ALJ decision, April 28, 2000)

Plain-English summary

Contractors Sand and Gravel pursued attorney fees and expenses under the Equal Access to Justice Act after the D.C. Circuit held that the Secretary's position in the underlying case was not substantially justified. The Commission reinstated the judge's EAJA award and remanded for calculation of fees incurred during the further review. After the parties agreed on the amount, Judge August F. Cetti ordered the Secretary to pay $99,935.51 within 30 days and dismissed the proceeding after full payment.

Decision snapshot

• Governing authority: 5 U.S.C. § 504
• Outcome: An agreed EAJA award of $99,935.51 was ordered, with dismissal after full payment.
• Key point: On remand, an ALJ can resolve the amount of an EAJA award by ordering payment of the parties' agreed fees and expenses.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

April 28, 2000

CONTRACTORS SAND AND : EQUAL ACCESS TO JUSTICE
GRAVEL, INC., : PROCEEDING
Applicant,
:
:
v. : Docket No. EAJ 96-3
:
SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA),
:
Respondent
:

DECISION ON REMAND

Before: Judge Cetti

On January 7, 2000, the United States Court of Appeals for the District of Columbia Circuit issued a decision in the above Equal Access to Justice Award case ($EAJA#). The Court held that Secretary s position in the underlying proceeding was not substantially justified. The Court ordered the award of fees and expenses that were granted by the administrative law judge be restored, and remanded the case to the Commission for a determination of the amount of the award to Contractors for pursuing review before the Court.

On March 28, 2000, the Commission issued an order reinstating the judge s EAJA award.
The Commission also remanded the case to the judge for a determination of fees and expenses incurred in defending the judge s decision before the Commission and those incurred in the court s review of the Commission s decision.

Pursuant to the remand, the judge ordered the parties to confer and to attempt to reach an agreement upon the amount of the fees and expenses to which the Applicant was entitled. Counsels have conferred as ordered, and counsel for the Secretary reports the parties have agreed that a total amount of $99,935.51 in fees and expenses will be paid by the Respondent to the Applicant.

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WHEREFORE, the Secretary of Labor is ORDERED TO PAY Contractors Sand and Gravel a total award of $99,935.51 within 30 days of the date of this decision. Upon receipt of full payment, this proceeding is dismissed.

August F. Cetti
Administrative Law Judge

Distribution:

C. Gregory Ruffennach, Esq., Ruffennach Law Offices, 450 East 3rd Avenue, Durango, CO 81301 (Certified Mail)

Jack Powasnik, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203 (Certified Mail)

/sh

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JACK POWASNICK ESQ
OFFICE OF THE SOLICITOR
U S DEPARTMENT OF LABOR
4015 WILSON BLVD #400
ARLINGTON VA 22203

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C GREGORY RUFFENNACH ESQ
RUFFENNACH LAW OFFICES
450 EAST 3RD AVE
DURANGO CO 81301