Black Diamond Construction Inc.

Plain-English summary

Black Diamond Construction had successfully defended an earlier Mine Act matter and received an Equal Access to Justice Act award of $14,390.25. After the Commission remanded the fee proceeding, the parties agreed that Black Diamond should receive another $15,234.04 for fees and expenses incurred defending its EAJA award before the Commission. Judge David Barbour ordered the Secretary to pay a total award of $29,624.29 within 30 days. The proceeding was dismissed upon full payment.

Decision snapshot

• Governing provision: 29 C.F.R. § 2704.205
• Outcome: The total EAJA award was set at $29,624.29, and the proceeding was ordered dismissed after full payment.
• Key point: Fees and expenses incurred successfully defending an EAJA award before the Commission were added to the original award by agreement of the parties.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10TH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                                    December 8, 1999

BLACK DIAMOND CONSTRUCTION : EQUAL ACCESS TO JUSTICE
INC., : PROCEEDING
Applicant :
v. : Docket No. EAJ 98-1
:
SECRETARY OF LABOR, : Formerly WEVA 98-1
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
Respondent :

                               DECISION ON REMAND

Before: Judge Barbour

    On November 3, 1999, the Commission affirmed the administrative law judge’s decision

in Black Diamond Construction, Inc., 20 FMSHRC 1169 (October 1998) (ALJ) and remanded
the case to provide the Applicant the opportunity to amend its Equal Access to Justice Act
(EAJA) application to include the reasonable fees and expenses it incurred in defending
successfully its EAJA award before the Commission (21 FMSHRC _____, Docket No. EAJ 98-
01 (November 3, 1999, slip op. at 12)). (In the underlying decision the judge awarded the
Applicant fees and expenses of $14,390.25.)

    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. If the
parties were unable to agree, the judge requested that the Applicant amend its application
specifying its claims and that it support the amended application with full documentation as
required by Commission Rule 205 (29 C.F.R. § 2704.205).

   Counsels have conferred as ordered, and counsel for the Applicant reports the parties

have agreed that a total amount of $29,624.29 in fees and expenses will be paid by the
Respondent to the Applicant. Thus, in addition to the original award of $14,390.25, the parties
have agreed the Applicant is entitled to $15,234.04 in fees and expenses incurred defending its
EAJA award.

   ACCORDINGLY, the Secretary is ORDERED to pay Black Diamond a total award of

$29,624.29 within 30 days of the date of this decision. Upon receipt of full payment, this
proceeding is DISMISSED.

                                         David Barbour
                                         Administrative Law Judge

Distribution:

Julia K. Shreve, Esq., Jackson & Kelly, P. O. Box 553, Charleston, WV 25322 (Certified Mail)

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

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