North County Sand & Gravel, Inc. v. Secretary of Labor (ALJ decision, July 22, 2014)

Plain-English summary

North County Sand & Gravel sought attorney fees and litigation expenses under the Equal Access to Justice Act after prevailing in the underlying WEST 2010-365-M proceeding. An earlier interim decision found the company eligible for an award and directed the parties to negotiate the amount. They stipulated to reimbursement of $40,923, payable directly to North County's counsel. After the Secretary paid the agreed amount, North County moved to dismiss its fee application without opposition. Judge Richard W. Manning granted the motion and dismissed the proceeding.

Decision snapshot

• Governing authority: 5 U.S.C. § 504; 29 C.F.R. §§ 2704.105(a), 2704.305
• Outcome: The Secretary paid the stipulated $40,923 fee award, and the EAJA proceeding was dismissed.
• Key point: Once an agreed EAJA award is paid, the applicant may dismiss the fee proceeding under the Commission's EAJA rules.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

Office of
Administrative Law Judges

721 19th Street, Suite
443

Denver, CO 80202-2536

303-844-3577/ FAX
303-844-5268

July 22, 2014

NORTH
COUNTY SAND & GRAVEL,

INC.,     

Applicant

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),                 

EQUAL
ACCESS TO JUSTICE   PROCEEDING

Docket
No. EAJ 2014-0001-J

Formerly
WEST 2010-365-M

Mine
ID 04-05632

Mine:
Roadrunner 32

Respondent

FINAL DECISION

ORDER OF
DISMISSAL

This case is before me upon an
application for the award of fees and expenses under the Equal Access to Justice Act (“EAJA”) 5 U.S.C. § 504 and the Commission’s regulations at 29 C.F.R § 2704. North County Sand & Gravel, Inc., filed the application against the Department of Labor’s Mine Safety and Health Administration based upon my decision in North County Sand & Gravel, Inc., 35 FMSHRC 3217 (Sep. 2013) (ALJ).

In an Interim Decision dated
May 13, 2014, I determined that North County was entitled to an EAJA award under 29 C.F.R § 2704.105(a). 36 FMSHRC 1214 (May 2014). My Interim Decision is incorporated herein by reference. I ordered the parties to attempt to reach an agreement as to the proper amount payable under EAJA in this case.

On June 30, 2014, the
parties filed a Joint Stipulation on Reimbursement. Applicant agreed to “accept an EAJA award of $40,923 for attorney’s fees and litigation-related expenses associated with EAJ 2014-0001-J, formerly WEST 2010-365-M.” (Joint Stipulation). The parties also agreed that payment would be made by the Secretary directly to Applicant’s counsel and that counsel would move for dismissal of its fee application pursuant to 29 C.F.R.

§ 2704.305 once the fee had been paid.

On July 18, 2014, counsel
for Applicant notified this court that the Secretary paid the agreed-upon fees and expenses in this case. On that basis, Applicant moved that this proceeding be dismissed. The Secretary does not oppose the motion. This settlement furthers the objectives of EAJA. For good cause shown, the motion is GRANTED and this proceeding is DISMISSED.

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Timothy
J. Turner, Esq., Office
of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5708

C.
Gregory Ruffennach, Esq., 1629 K Street, N.W. Suite 300, Washington DC 20006-1631

RWM