Secretary of Labor (MSHA) on behalf of I.B. Acton and others v. Jim Walter Resources, Inc. (ALJ decision, November 22, 1985)

Plain-English summary

After a Commission remand in seventeen consolidated discrimination cases, Judge Gary Melick set interest on damages previously awarded to thirteen miners. He ordered Jim Walter Resources to pay each miner the listed damages and interest within 30 days. The United Mine Workers of America also sought attorney fees and expenses as an intervenor. The judge found that the union's work largely duplicated the Secretary's and that the successful training reimbursement claim was a limited part of the case, but he did not deny fees entirely. He ordered Jim Walter Resources to pay the union $1,062.40 in fees and expenses within 30 days.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(c)(3), costs and attorney fees in Mine Act discrimination cases.
• Outcome: Damages and interest amounts ordered for thirteen miners; $1,062.40 in union attorney fees and expenses awarded.
• Key point: The union's limited contribution supported a reduced fee award, while the miners' individual interest amounts were undisputed.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. JIM WALTER RESOURCES
DDATE:
19851122
TTEXT:
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Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
DISCRIMINATION PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
I.B. ACTON,
SE 84-31-D
GRADY ADERHOLT,
SE 84-32-D
FREEMAN BUTLER,
SE 84-33-D
JAMES L. CAMPBELL,
SE 84-34-D
J.D. ELLENBURG,
SE 84-35-D
W.D. FRANKLIN,
SE 84-36-D
BILLY R. GLOVER,
SE 84-37-D
TERRY PEOPLES,
SE 84-39-D
WILLIAM REID,
SE 84-40-D
CHARLES W. RICKER,
SE 84-41-D
TERRY SHUBERT,
SE 84-42-D
THEODORE TAYLOR,
SE 84-43-D
MARVIN WISE,
SE 84-44-D
CHARLES BLACKWELL,
SE 84-45-D
ROBERT BURLESON,
SE 84-46-D
HOUSTON EVANS,AND
SE 84-47-D
KENNETH RANDAL COFER,
SE 84-52-D
COMPLAINANTS

UNITED MINE WORKERS OF
AMERICA (UMWA),
INTERVENOR v.

JIM WALTER RESOURCES, INC,
RESPONDENT

DECISION

Appearances: Frederick Moncrief, Esq., and Linda Leasure, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia; for Complainants;
Mary Lu Jordon, Esq., and Earl R. Pfeffer, Esq., UMWA, Washington, D.C., for Intervenor;
David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.C., Birmingham, Alabama; and Robert W. Pollard, Esq., Jim Walter Resources, Inc., Birmingham, Alabama; for Respondent
~1953
Before: Judge Melick

These cases are before me upon remand by the Commission on September 30, 1985, to allow the Secretary of Labor more time, in addition to the 35 days previously given, to submit calculations of interest due on the damages awarded in the decision below (7 FMSHRC at 1355) and similarly to provide additional time for the Intervenor, United Mine Workers of America (UMWA), to submit any petition for attorney's fees.

Interest and Total Awards

Based upon the undisputed submissions by the Secretary of Labor, Jim Walter Resources, Inc., is directed to pay the following amounts to the named Complainants within 30 days of the date of this decision:

 Name              Damages       Interest    Total Due

 I.B. Acton         523.48        96.56       620.04
 Grady Aderholt     485.54        89.56       575.10
 Robert Burleson    528.74        112.06      640.80
 Freeman Butler     418.40         88.69      507.09
 James Campbell     493.88         91.10      584.98
 W.D. Franklin      437.54         80.70      518.24
 Billy Glover       429.86         79.29      509.15
 Terry Peoples      436.54         92.51      529.05
 William Reid       425.86         78.55      504.41
 Charles Ricker     500.00         92.22      592.22
 Terry Shubert      420.14         89.05      509.19
 Theodore Taylor    439.74         81.10      520.84
 Marvin Wise        404.86         85.81     490.67

Attorney's Fees

Section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq., the "Act", provides that "[w]henever an order is issued sustaining the complainant's charges under this subsection, a sum equal to the aggregate amount of all costs and expenses (including attorney's fees) as determined by the Commission to have been reasonably incurred by the miner, applicant for employment or representative of miners for, or in connection with, the institution and prosecution of such proceedings shall be assessed against the person committing such violation." (FOOTNOTE.1) In these cases the UMWA was a representative of miners.
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In Munsey v. FMSHRC, 701 F.2d 976 (D.C.Cir.), cert. denied 104 S.Ct. 163 (1983), it was held that the UMWA may be awarded cost-based attorney fees (i.e., salary for in-house counsel plus proportionate overhead) or, alternatively, the in-house counsel may be awarded market-rate fees. As best as can be determined from the application submitted herein, the UMWA is seeking cost-based attorney's fees plus specific costs for trial transcripts and travel expenses totaling $5,307.01. In determining the eligibility of the UMWA for an award of attorney's fees in these cases consideration must initially be given to its status as an intervenor and to the degree of its success in the instant litigation. See 1 Court Awarded Attorney Fees 7.01.

Intervenors, as recognized parties (see Commission Rule 4, 29 C.F.R. 2700.4), are generally eligible for the award of attorney's fees but only insofar as their participation in the litigation contributed more than that already provided by the parties themselves. 1 Court Awarded Attorney Fees 7.03(1). More particularly, attorney's fees may be reduced to the extent that the intervenor's positions have essentially duplicated those of the plaintiff and its participation has not added significantly in the formulation of remedial measures. Morgan v. McDonough, 511 F.Supp 408 (D.Mass1981). In these cases it can not fairly be said that the UMWA intervention added in any significant way to the representation provided through the Secretary of Labor.

On the other hand the essentially de minimus role of the UMWA in this litigation should not totally preclude a fee award because to retrospectively deny such fees because a party's participation proves unnecessary would have the effect of discouraging the intervention of what in future cases could be essential parties. Seattle School District No. 1 v. State of Washington, 633 F.2d 1338, 1349 (9th Cir.1980), aff'd, 102 S.Ct. 3187 (1982). In addition, it appears from the record in this case that the UMWA played a role in prompting the Secretary to act on behalf of the individual complainants. See Thomas v. Honeybrook Mines, Inc., 428 F.2d 981 (3rd Cir.1970).

Section 105(c)(3) of the Act also requires for the award of attorney's fees, that an order have been issued "sustaining the complainant's charges". The decision and order in these proceedings did not sustain the primary charges of the Complainants i.e., that the mine operator unlawfully bypassed certain miners seeking reemployment on the grounds that those miners had not obtained certain federally mandated training (and denied entirely the complaints of four of the seventeen Complainants). The ~1955 secondary position of thirteen of the seventeen Complainants i.e., that the failure of the mine operator to reimburse them for their safety training constituted unlawful discrimination, was not even mentioned in the UMWA prehearing brief. That secondary position was however upheld and provided some benefit to those individuals. Accordingly the UMWA may be considered a prevailing party for purposes of eligibility for attorney's fees. Section 105(c)(3); Hensley v. Eckerhart, 103 S.Ct. 1933 (1983).

It is noted, however, that the legal principle upon which this secondary claim was based had already been established by earlier Commission decision (Secretary on behalf of Bennett et al v. Emery Mining Corp., 5 FMSHRC 1391 (1983)). It is apparent moreover that neither significant time nor effort was required to prevail on this issue. The UMWA has not distinguished between the time spent on various issues but it is apparant based on the above considerations, that a further reduction in the fee request is warranted.

The specific itemizations in the petition for attorney's fees filed by the UMWA are not disputed by Respondent. However, in consideration of the factors discussed herein I find that a reduction of 80% in the requested amount is warranted. Accordingly, Jim Walter Resources is directed to pay to the UMWA within 30 days of the date of this decision attorney's fees and expenses in the amount of $1,062.40.

Gary Melick
Administrative Law Judge

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FOOTNOTES START HERE:-

~Footnote_one

1 Contrary to Respondent's letter in opposition to attorney's fees, such fees may be assessed for proceedings under any part of subsection (c) of section 105, i.e. either 105(c)(2) or 105(c)(3).