Productos de Agregados de Gurabo v. Secretary of Labor

Plain-English summary

Productos de Agregados de Gurabo prevailed when Judge John Kent Lewis vacated an MSHA safe-access citation for lack of sufficiently reliable evidence. The operator later sought attorney fees and expenses under the Equal Access to Justice Act. Its February 22, 2016 application came almost two months after the December 30, 2015 deadline, which was 30 days after the underlying decision became final and unappealable. The judge held that the Commission lacked a separate inherent equitable power to award the requested fees and that the statutory filing deadline controlled. He denied the application as untimely without reaching whether the Secretary's position had been substantially justified.

Decision snapshot

• Governing rule: An EAJA application must be filed within 30 days after final disposition of the underlying proceeding.
• Outcome: The operator's application for attorney fees and expenses was denied as untimely.
• Key point: Recasting an EAJA fee request as an appeal to inherent equitable power does not avoid the statutory 30-day deadline.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240
/ FAX: 412-928-8689

PRODUCTOS
DE AGREGADOS DE GURABO,

Petitioner,

v.

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

Respondent.

EQUAL
ACCESS TO JUSTICE PROCEEDING

Docket
No. EAJA 2016-0003

Formerly 
SE-2013-0449-M

Mine
ID No.: 54-00316         

Mine:
 Productos de Agregados de Gurabo

DECISION AND
ORDER

Before:
Judge Lewis

This case is
before me upon an Application for Fees and Other Expenses filed by Productos de
Agregados de Gurabo (“P.A.G.,” or “Operator,” or “Petitioner,”) pursuant to the
Equal Access to Justice Act, 5 U.S.C. § 504 (the “Act”) and the Federal Mine
Safety and Health Review Commission’s (the “Commission”) implementing regulations
at 29 C.F.R. § 2704.100 et seq. 

PROCEDURAL
HISTORY

On April 12,
2013, MSHA Inspector Isaac Villahermosa conducted an inspection of the
Petitioner’s Productos de Agregados de Gurabo surface mine. The inspector
issued Citation No. 8723601 for violation of 30 C.F.R. § 56.11001,
“Safe Access,” on the same date. Productos de Agregados de Gurabo, 37 FMSHRC 2441 (Oct. 2015).

After extensive prehearing discovery and numerous
prehearing motions, a hearing was held on April 29 and 30, 2015 in Carolina,
Puerto Rico.

On October 28, 2015, I issued a decision and order,
vacating Citation No. 8723601, essentially holding that the Secretary had
failed to present sufficiently reliable evidence to support a finding of a § 56.11001
violation. Productos
de Agregados de Gurabo, 37 FMSHRC 2441 (Oct.
2015).

Neither
party filed a petition for discretionary review with the Commission following
the issuance of said October 28, 2015 decision nor did any party seek review by
the Circuit Court.[1]

On February 22, 2016, the Petitioner
filed the subject application for fees and expenses.[2]
5 U.S.C. § 504.

On March 24, 2016, the Secretary of
Labor filed a response and objection to the Petitioner’s application, contending,
inter alia, that Petitioner’s application was time-barred.

On April 4, 2016, the Secretary filed
its sur-reply.

LAW
AND REGULATIONS

29 C.F.R.  § 2704.100 sets
forth the purpose of Commission rules as to applications for Equal Access to
Justice Act fees under 5 U.S.C. § 504:

The Equal Access to Justice Act, 5 U.S.C. § 504, provides for the award of attorney fees and other
expenses to eligible individuals and entities who are parties to certain
administrative proceedings (called “adversary adjudications”) before this
Commission. An eligible party may receive an award when it prevails over the
U.S. Department of Labor, Mine Safety and Health Administration (“MSHA”),
unless the Secretary of Labor's position in the proceeding was substantially
justified or special circumstances make an award unjust. In addition to the
foregoing ground of recovery, a non-prevailing eligible party may receive an
award if the demand of the Secretary is substantially in excess of the decision
of the Commission and unreasonable, unless the applicant party has committed a
willful violation of law or otherwise acted in bad faith, or special
circumstances make an award unjust. The rules in this part describe the parties
eligible for each type of award. They also explain how to apply for awards, and
the procedures and standards that this Commission will use to make the awards.
In addition to the rules in this part, the Commission's general rules of
procedure, part 2700 of this chapter, apply where appropriate.

29 C.F.R.  § 2704.100.

29 C.F.R. § 2704.206 sets forth when an
application may be filed:

(a)    An application
may be filed whenever the applicant has prevailed in the underlying proceeding
or in a significant and discrete substantive portion of that proceeding. An
application may also be filed by a non-prevailing party when a demand by the
Secretary is substantially in excess of the decision of the Commission and is
unreasonable when compared with such decision. In no case may an application be
filed later than 30 days after the Commission's final disposition of the
underlying proceeding, or 30 days after issuance of a court judgment that is
final and nonappealable in any Commission adjudication that has been appealed
pursuant to section 106 of the Mine Act, 30
U.S.C. § 816.

(b)   If review or
reconsideration is sought or taken of a decision on the merits as to which an
applicant has prevailed or has been subjected to a demand from the Secretary
substantially in excess of the decision of the Commission and unreasonable when
compared to that decision, proceedings for the award of fees shall be stayed
pending final disposition of the underlying controversy.

(c)    For purposes of
this part, final disposition before the Commission means the  date on which a
decision or order disposing of the merits of the proceeding or any other
complete resolution of the proceeding, such as a settlement or voluntary
dismissal, becomes final (pursuant to sections 105(d) and 113(d) of the Mine
Act (30 U.S.C. §§
815(d) and 823(d)))
and unappealable, both within the Commission and to the courts (pursuant to
section 106(a) of the Mine Act (30 U.S.C. § 816(a)).

29
C.F.R. §
2704.206.

ISSUE

Given the above
procedural history and applicable law and regulations, must Petitioner’s
application for EAJA fees be denied on the basis of untimely filing?

FINDINGS
OF FACT AND CONCLUSIONS OF LAW

In my original,
underlying decision I noted that the Petitioner’s extensive prehearing
challenges to Mine Act jurisdiction were clearly without merit. See, inter alia,
Productos de
Agregados de Gurabo,
37 FMSHRC 2441, at 2441-3 (Oct. 2015).[3] Further, my decision in favor of
the Petitioner essentially turned upon the Secretary’s evidentiary failure to
present sufficiently reliable evidence to support a finding of violation (see, inter
alia, 37 FMSHRC 2441, at 2450-2460.)

I am inclined to agree with the Secretary that the
Petitioner’s application for EAJA fees should also be rejected on substantive
grounds.[4]
However, given the within procedural posture, I need not address the
substantive merits of Petitioner’s claim in that its application is clearly
time-barred.

5
U.S.C. §504(a)(2)
plainly provides that a party seeking EAJA fees shall submit “within thirty
days of a final disposition in the adversary adjudication” its application. 5 U.S.C. § 504(a)(2).

29
C.F.R. § 2704.206 also clearly and unambiguously provides that “in no case may
an application be filed more than 30 days after the Commission’s final
disposition of the underlying proceeding, or 30 days after the issuance of a
court judgment that is final and unappealable in any Commission adjudication
that has been appealed pursuant to section 106 of the Mine Act, 30 U.S.C. §
816.” 29 C.F.R. § 2704.206.

Petitioner’s
February 22, 2016 EAJA fee application was inarguably far beyond the mandated
30 day deadline.

Circuit
Court case law holds that courts may not, by local rule, shorten or extend the
time for filing in EAJA petition. Al-Harbi v. I.N.S., 284 F.3d 1080,
1082 (9th Cir. 2002).

My
decision issued on October 28, 2015 became final and unappealable on or around
November 30, 2015.[5]
The Petitioner failed to file its application until February 22, 2016 – almost
two months after the statutory deadline of December 30, 2015.

The
Commission has consistently held that untimely applications under EAJA must be rejected.[6]
See Signature Mining Services v. Secretary of Labor, 18 FMSHRC 3261, n.
1 (Dec. 2014) (wherein ALJ McCarthy found that Signature was ineligible
to be award EAJA fees due to its failure to apply for such within 30 days of
the Commission’s final disposition of the underlying proceeding); See also
James M. Ray v. Secretary of Labor, 18 FMSHRC 2037 (Nov. 1996) (wherein ALJ
Fauver acknowledged that an application for EAJA fees could be rejected for
untimely filing, but rejected Secretary’s motion to dismiss because the 30 day
period, after excluding the day of decision’s issuance and a Sunday, had not,
in fact, elapsed.)

Therefore
I am constrained to find that the Petitioner’s application must be denied
because it was filed beyond the statutory deadline.

ORDER

It is the
decision of the undersigned that Petitioner’s application for fees and expenses
under the Equal Access to Justice Act was untimely filed and Petitioner’s
application is hereby DENIED.

/s/ John K. Lewis

John
K. Lewis

Administrative
Law Judge

Distribution:

Damaris
Delgado-Vega, Esq., Ortiz & Ortiz Law Office, P.S.C., 470 Avenida Cesar L.
Gonzalez, San Juan, PR 00918

Terrence
Duncan, Esq., Office of the Solicitor, U.S. Department of Labor, 201 Varick
Street,

Room,
983, New York, NY 10014

[1]
The
Commission also did not direct the case for review on its own motion, pursuant
to 29 C.F.R. § 2700.71.

[2] The operator’s
February 22, 2016 motion for fees explicitly stated that it was “under
the inherent power of the court.” Resp’t Productos de Agregados de
Gurabo’s Petition for Attorneys’ Fees and Litigation Expenses, at 1 (emphasis
in the original).

Notwithstanding
the Petitioner’s failure to title its claim as an application for EAJA fees, this
Decision and Order treats P.A.G.’s February 22, 2016 filing as a petition for
EAJA fees.

Despite
the operator’s insistence that the filing was made under the Court’s inherent
powers to award fees, the remainder of the filing uses language inseparable
from its EAJA context, including terms like “prevailing party,” and “adversary
proceeding,” in addition to arguing that “the position of the agency was not
substantially justified.” Id., at 2-3. These are all terms specifically
associated with EAJA proceedings and indeed, despite the Petitioner’s
protestations to the contrary, the filing otherwise follows a standard EAJA
petition format.

Furthermore, it is unclear as to what
“inherent powers,” the Petitioner refers to. Id., at 1.  The Commission
is not a court of general equity, and has no apparent “inherent powers,” at
least none this Court is comfortable exercising absent controlling Commission
precedent. See Jim
Walter Resources,
15 FMSHRC 782, at 790 (May 1993) (holding that the Commission is not a court of
general equity, and that it is a fundamental premise that equity aids only
those who have vigilantly pursued their rights).  Moreover, as the Commission
reasoned in Kaiser Coal Corporation, “[w]e begin with the fundamental
principle that, as an administrative agency created by statute, we cannot
exceed the jurisdictional authority granted to us by Congress.” Kaiser Coal
Corporation, 10 FMSHRC 1165, at 1169 (Sept. 1988). And, “[i]t also
is a long-standing rule of law that the consent of the United States to be sued
will not be extended beyond its literal terms and will not be implied.” Nibali
v. United States, 634 F.2d 494, 497 (Ct. Cl. 1980), citations omitted.

The Court declines to endorse Petitioner’s
view, and will not extend the United States’ consent to be sued beyond the four
corners of the statutes at issue.

In an attempt to have its cake and eat
it too, the Petitioner contends in its March 31, 2016 filing that “the
Commission will be furthering Congress’s policy choice when Congress enacted
the EAJA” by awarding P.A.G. attorneys’ fees. Resp’t’s Reply to the
Secretary of Labor’s Response and Objections, at 8. Similarly, the Petitioner
attempts to evade the 30-day requirement under EAJA by arguing that these time
limits do not apply to the Court’s inherent equity powers. Id., at 10. The
Petitioner attempts to argue “in the alternative” that the filing should be
treated as a properly filed EAJA petition. Id., at 11.

Given that this Court has no inherent
powers to render the relief sought, given the Petitioner’s failure to cite a
single FMSHRC decision for the proposition supporting the Commission’s
“inherent power,” to award attorneys’ fees, and given the Petitioner’s initial
decision to submit a filing that conformed almost totally to a standard EAJA
format, this matter was properly docketed EAJA 2016-0003, and will be treated
as such. The Petitioner’s arguments to the contrary lack any grounding in
Commission precedent, betray a troubling misunderstanding of the separation of
powers, and fail to persuade.

[3]
In her
application for EAJA fees, the Petitioner’s counsel indicated that she was not
seeking fees and costs related to previous jurisdictional challenges. Resp’t
Productos de Agregados de Gurabo’s Petition for Attorneys’ Fees and Litigation
Expenses, at 2.

[4]
See the Solicitor’s
response and objections to the Petitioner’s application for fees, wherein, inter
alia, the Solicitor avers that its offer to reclassify the citation from
S&S to non-S&S with a penalty reduction from $873.00 to $131.00 had
been rejected by the Petitioner prior to hearing. See also the
Solicitor’s arguments that Petitioner’s EAJA application should be denied on
the merits. Sec’y’s Response and Objections to Pet’r’s Application for Fees
and Expenses Pursuant to the Equal Access to Justice Act, at 4.

The
Undersigned is reminded of the Supreme Court’s reasoning in Ardestani v.
I.N.S., 502 U.S. 129: “[t]he clearly stated objective of the EAJA is to
eliminate financial disincentives for those who would defend against unjustified
governmental action and thereby to deter the unreasonable exercise of
Government authority.” Ardestani v. I.N.S., 502 U.S. 129, at 138 (1991),
emphasis added.

[5] 29 C.F.R. § 2700.70
provides that a party adversely affected or aggrieved by a judge’s decision may
file with the Commission a petition for discretionary review within 30 days
after issuance of the decision.

[6]
The
Petitioner has not presented any Commission precedent to the contrary.
Likewise, the Petitioner has cited no Commission case law supporting the
application of equitable tolling to the EAJA context (instead, citing an
irrelevant 10th Circuit opinion regarding equitable tolling and miners’ rights
to file discrimination complaints under § 815(c)(2) of the Mine Act). Resp’t’s
Reply to the Secretary of Labor’s Response and Objections, at 13, citing
Olson
v. Fed. Mine Safety & Health Review Comm'n, 381 F.3d 1007
(10th Cir. 2004).

Even if equitable tolling were a
possibility in EAJA matters, the length of delay in filing and the problematic
nature of the Petitioner’s EAJA claim on-the-merits, would not qualify this for
such tolling. As the Supreme Court noted in Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, equitable tolling is extended only in exceptional
cases:

“Federal courts have typically extended
equitable relief only sparingly. We have allowed equitable tolling in
situations the claimant has actively pursued his judicial remedies by filing a
defective pleading during the statutory period, or where the complainant has
been induced or tricked by his adversary's misconduct into allowing the filing
deadline to pass. We have generally been much less forgiving in receiving late
filings where the claimant failed to exercise due diligence in preserving his
legal rights.” Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96,
(1990).

The Petitioner has alleged nothing
resembling the circumstances described in Irwin to merit the relief
asked for.