James M. Ray, employed by Journagan Construction Company, Inc. (ALJ decision, March 19, 1999)

Plain-English summary

James M. Ray sought attorney fees and expenses under the Equal Access to Justice Act after prevailing against MSHA in an individual civil-penalty proceeding. The Commission had ruled that the Secretary's position was not substantially justified as to one citation and remanded the fee case so the parties could allocate the recoverable expenses. Judge Avram Weisberger approved the parties' settlement and ordered the Secretary to pay Ray $27,000 within 40 days.

Decision snapshot

• Governing provisions: 5 U.S.C. § 504; 30 U.S.C. § 820(c); 30 C.F.R. § 56.12016
• Outcome: EAJA settlement approved, with the Secretary ordered to pay $27,000 within 40 days.
• Key point: After the Commission found the Secretary's position unjustified as to one citation, the ALJ approved the parties' settlement of the fee allocation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF A D M INISTRA TIV E LA W JUDGES 2 SK YLINE, 10 th FLOOR
5203 LEESBURG PIK E
FA LLS CHURCH, V IRGINIA 22041

March 19, 1999

JAMES M. RAY Employed by : EQUAL ACCESS TO JUSTICE
LEO JOURNAGAN CONSTRUCTION : PROCEEDING
COMPANY, INC.,
:
Applicant : Docket No. EAJ 96-4
v. :
: Journagan Portable
SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA),
:
Respondent
:

DECISION APPROVING SETTLEMENT

Before: Judge Weisberger

Introduction

This proceeding involves the recovery of attorneys= fees and expenses under the Equal Access to Justice Act (AEAJA@), 5 U.S.C. ' 504 (1996). James AMike@ Ray (ARay@), who was employed by Leo Journagan Construction Company, Inc. (AJournagan@), prevailed over the Mine Safety and Health Administration (AMSHA@) in the underlying section 110(c) proceeding under the Federal Safety and Health Act of 1977 (AAct@), 30 U.S.C. ' 820(c) (1994). 18 FMSHRC 892 (June 1996). Thereafter, Ray filed an application for fees and expenses under the EAJA on the basis that the Secretary=s position on the two citations at issue was not substantially justified. Former Administrative Law Judge William Fauver denied the application. 18 FMSHRC 2033 (Nov. 1996) (ALJ). Ray filed a petition for review with the Commission challenging the Judge=s determination that the Secretary=s position was substantially justified. The Commission reversed Judge Fauver=s determination of substantial justification on the first citation,1 but affirmed as to the second. (20 FMSHRC 1014 (1998)).

The Commission remanded this proceeding A. . . in order to allocate from the total amount of fees and expenses originally applied for those attributable to Ray=s defense of section 110(c) liability arising from the first citation.@ (20 FMSHRC supra at 1029.)

The parties filed a Motion to Approve Settlement of the issues raised in this case. I have reviewed the motion and representations of the parties along with the record in this case. I find that the settlement is proper under the terms of the EAJA, and I approve It.
ORDER

1
/ This Citation alleges a violation of 30 C.R.R. ' 56.12016

It is ORDERED that the motion is GRANTED. It is further ORDERED that the Secretary shall pay James M. Ray $27,000 within 40 days of this Decision.

Avram Weisberger
Administrative Law Judge

Distribution:

Lydia Tzagoloff, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716 (Certified Mail)

Brad Hiles, Esq., Blackwell Sanders Peper Martin, 720 Olive Street, Suite 2400, St. Louis, MO 63101 (Certified Mail)

dcp

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