Secretary of Labor v. Portable, Inc. (Commission decision, February 21, 2017)

Plain-English summary

Portable prevailed in the underlying penalty case when a Commission judge vacated the citation against it. Portable then sought fees under the Equal Access to Justice Act, and the judge awarded the requested $62,217.82 after finding that the Secretary's position was not substantially justified. The Commission granted the Secretary's petition for review. Before review was decided, the parties reported that they had completely resolved the fee dispute through settlement. The Commission granted their joint motion and dismissed the proceeding.

Decision snapshot

• Cited authority: 5 U.S.C. § 504; 29 C.F.R. § 2704.305
• Outcome: The parties' joint dismissal motion was granted after settlement, and the EAJA proceeding was dismissed.
• Key point: A complete settlement ended Commission review of the $62,217.82 attorney-fee award without a merits ruling.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C.  20004-1710

SECRETARY OF LABOR,                           :

MINE SAFETY AND HEALTH                  :

ADMINISTRATION (MSHA)                     :                                

: Docket No. EAJA 2015-1-M

v.                                            
 :                                

:                                

PORTABLE, INC.                                          :                                

BEFORE:  Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners

ORDER OF DISMISSAL

BY THE COMMISSION:

This proceeding involves an application for an award of attorney’s fees and expenses under the Equal Access to Justice Act (“EAJA”).  5 U.S.C. § 504.  Portable, Inc., prevailed   over the Department of Labor’s Mine Safety and Health Administration in a penalty proceeding under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012).  The Commission Administrative Law Judge vacated the citation at issue.  36 FMSHRC 3249  (Dec. 2014) (ALJ).  Portable then filed an EAJA application on the ground that the Secretary  of Labor’s position was not substantially justified.  The Judge held that the Secretary’s position was not substantially justified and granted the
$62,217.82 award requested in the application.  37 FMSHRC 1405 (July 2015) (ALJ).  The Secretary filed a petition for discretionary review, which the Commission granted.

The Secretary and Portable have filed a joint motion to dismiss notifying the Commission that the parties have reached a complete resolution of this matter through settlement.  See 29 C.F.R. § 2704.305.

Upon
consideration of the settlement and joint motion filed by the parties, the motion is GRANTED and this proceeding is DISMISSED .

/s/ William I. Althen

William I. Althen, Acting Chairman

/s/
Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner