Scott D. McGlothlin v. Dominion Coal Corporation (ALJ decision, July 19, 2016)

Plain-English summary

The Commission had approved $88,975.48 in attorney fees for Scott McGlothlin's successful discrimination case and later remanded for consideration of any further fee award. McGlothlin's counsel then requested another $41,525 for legal work performed while pursuing the original fee amount. Dominion Coal asked to brief whether the additional fees were reasonable, while McGlothlin opposed further briefing. Judge Jerold Feldman granted Dominion's request but limited its brief to reasonableness, capped it at 15 double-spaced pages, and set deadlines for Dominion and McGlothlin. The Judge later awarded the full additional amount in va-2014-233-d-alj.

Decision snapshot

• Cited standard: None.
• Outcome: Dominion was permitted limited briefing on the reasonableness of the additional $41,525 attorney-fee request.
• Key point: On remand, the Judge allowed targeted briefing before deciding whether further attorney fees were reasonably incurred.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue NW, Suite 520N

Washington, D.C. 20004

July 19, 2016

SCOTT D. MCGLOTHLIN,

Complainant,

v.

DOMINION COAL CORPORATION,

Respondent.

DISCRIMINATION PROCEEDING

Docket No. VA 2014-233-D

NORT-CD-2013-04

Mine: Dominion No. 7

Mine ID: 44-06499

ORDER
SCHEDULING BRIEFING

Before:            Judge Feldman

The initial decision on relief in this discrimination matter awarded back pay to      Scott D. McGlothlin, but reduced McGlothlin’s attorney fees by $31,745.66 — from $88,975.48 to $57,229.82. 38 FMSHRC 225, 268 (Feb. 2016) (ALJ). The Commission granted McGlothlin’s petition for discretionary review challenging the reduction in attorney fees. Dominion Coal Corp. (“Dominion”) did not oppose McGlothlin’s petition. On March 30, 2016, the Commission reversed the initial decision on relief, approving the
$88,975.48 in fees proposed by the parties in their November 11, 2015, settlement proposal. The Commission held:

Where, as here, the parties have
agreed to stipulated attorneys’ fees and there are no allegations or evidence that such an amount would adversely affect the remedy afforded the discriminatee, the Judge erred in rejecting the settlement based upon the agreed upon amount of attorneys’ fees.

38 FMSHRC 401, 402 (Mar. 2016) (emphasis added).

On June 20, 2016, McGlothlin’s counsel filed a motion for award of attorney fees requesting an additional $41,525.00 for reported legal services rendered during the period July 1, 2015, through June 20, 2016. This period represents work performed to effectuate the parties’ purported November 11 proposed settlement terms with respect to attorney fees, which is now

apparently in dispute.[1]
This case has now been remanded “for a determination of any further award of attorneys’ fees.” 38 FMSHRC __, slip op. at 2 (July 15, 2016).

The parties have been given an opportunity to advise whether they desire to file briefs in response to the Commission’s remand. Dominion advises that it wishes to file a brief to contest “the reasonableness of additional attorney fees” sought by McGlothlin’s counsel. McGlothlin opposes the filing of any additional briefs.

IT IS ORDERED that Dominion’s request to file additional briefing in this matter    IS GRANTED. As the parties have already filed relevant briefs, Dominion’s request will be limited solely to the issue of the reasonableness of the $41,525.00 in attorney fees sought. Dominion’s brief should be filed on or before July 29, 2016, and should be limited to no more than 15 pages double-spaced. Any reply by McGlothlin should be filed no later than     August 5, 2016.

/s/ Jerold
Feldman

Jerold Feldman

Administrative Law Judge

Distribution:

Evan B. Smith, Esq., Wes Addington, Esq., Appalachian Citizens Law Center, Inc.,         317 Main Street, Whiteburg, KY 41858

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522

David Hardy, Esq., Scott Wickline, Esq., Hardy Pence PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548, Charleston, WV 25329

[1] Dominion asserts that the terms of the November 11 settlement proposal do not provide for additional attorney fees beyond the
$88,975.48 proposed by the parties. However, given McGlothlin’s current posture regarding additional attorney fees, despite the parties’ proposed settlement terms, Dominion now argues that McGlothlin’s counsels’ November 11 “fee petition was unreasonably excessive in the amount of $31,745.66.” Dominion’s Response, at 12 (July 1, 2016).