Scott D. McGlothlin v. Dominion Coal Corporation

Plain-English summary

An earlier liability ruling found that Dominion Coal interfered with Scott McGlothlin's Part 90 pay protection by reducing his pay after he sought medical-transfer status. The parties proposed $45,942.61 in back pay and expenses plus $88,975.48 in attorney fees, but Judge Jerold Feldman treated the filing as a petition for relief subject to Commission review. He approved the back-pay amount but found part of the dual-attorney billing duplicative and reduced reimbursable legal fees and expenses to $57,229.82. The order also required posting the liability decision, clearing McGlothlin's employment record, and avoiding negative references. The Commission later held that the Judge should not have rejected the stipulated fee amount without evidence that it impaired the miner's remedy, and it approved the parties' fee provisions.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 815(c)(1), 815(c)(3)
• Outcome: Dominion was ordered to pay $45,942.61 to McGlothlin and $57,229.82 in fees and expenses, but the later Commission decision approved the higher agreed fee amount.
• Key point: The Judge reduced duplicative fee billing under the Mine Act's reasonableness requirement, while the Commission later gave controlling weight to the parties' stipulated fee terms.

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

February 8, 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

DECISION ON
RELIEF

AND

FINAL ORDER

Before:            Judge Feldman

This matter is before me based on a Complaint of
Discrimination brought by     Scott D. McGlothlin against Dominion Coal
Corporation (“Dominion”), pursuant to section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(3) (2006) (“Mine
Act” or “the Act”). This Decision on Relief follows a summary decision on liability,
issued on June 11, 2015, resolving the liability at issue without the need for
an evidentiary hearing. McGlothlin v. Dominion Coal Corp., 37 FMSHRC
1256 (June 2015) (ALJ). The summary decision on liability, based on an
undisputed chronology of events, held that Dominion violated the
anti-discrimination provisions of section 105(c)[1]
by interfering with McGlothlin’s right to pay protection under 30 C.F.R. Part
90 when Dominion reduced McGlothlin’s pay after McGlothlin sought a determination
concerning his eligibility for Part 90 protection.[2]
Id. at 1264-1266. The decision on liability is incorporated by
reference.

I.                  
Issues

The goal of this proceeding is to award
McGlothlin the relief that will make him whole. See Clifford Meek v. Essroc
Corp., 15 FMSHRC 606, 617 (April 1993) (citations omitted). The wages lost by McGlothlin are easily ascertainable
by multiplying his reduction in pay by the period of his loss. The question of
reimbursement of McGlothlin’s attorney fees is a different matter. Given the demonstratively
duplicative and excessive attorney fees sought to be reimbursed, the dispositive
question is whether the Commission is compelled to direct such reimbursement
simply because the respondent mine operator found liable in a 105(c)(3)
proceeding has agreed to pay legal fees deemed unreasonable. Section 105(c)(3)
states, in pertinent part:

. . . [in] granting such relief as [the
Commission] deems appropriate, [the Commission shall award] . . . 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.
. . . 

30 U.S.C. § 815(c)(3) (emphasis added).

II.               
Background

The Decision on Liability ordered the parties to
confer in an attempt to reach an agreement on the specific relief to be
awarded. The parties were given two options: 1) to file individual petitions on
relief if the parties could not agree on a relief proposal; or 2) to file a
joint petition on relief if Dominion could agree to the relief proposed by
McGlothlin. Id. at 1265-66. The parties did neither.

Rather, on September 2, 2015, the parties filed
a Joint Motion to Dismiss McGlothlin’s complaint based on the parties’ proposed
settlement. The parties’ Joint Motion to Dismiss was predicated upon
McGlothlin’s agreement that “the parties jointly move the Court to dismiss all
claims in this action with prejudice,” in exchange for Dominion’s agreement to pay
the relief sought by McGlothlin’s counsel on his behalf, including reimbursement
of their claimed attorney fees. Jt. Mot. to Dismiss, at 2 (Sept. 2, 2015). Specifically,
Dominion agreed to pay McGlothlin back pay of $45,942.61, in addition to $88,975.48
in reimbursed attorney fees for approximately eight weeks (331.1 hours) of claimed
legal services provided by Evan Smith of the Appalachian Citizens’ Law Center
(“ACLC”), and Tony Oppegard, as private counsel. Confidential Settlement
Agreement, at 2 (Sept. 2, 2015).

ACLC is the preeminent non-profit organization
providing free legal representation to coal miners regarding matters arising
under the Mine Act, including complaints of discrimination. ACLC is funded by
foundations, donations, and attorney fees recovered during the course of its
litigation. Financials, Appalachian
Citizens’ Law Ctr., http://appalachianlawcenter.org/financials/ (last
visited February 12, 2016). The principals of ACLC are Stephen A. Sanders, who
has more than 20 years of experience that includes representation of miners in
105(c) discrimination cases, and Wes Addington, who also specializes in mine
safety litigation. Staff and Board, Appalachian
Citizens’ Law Ctr., http://appalachianlawcenter.org/about-us-3/staff/ (last
visited February 12, 2016). Tony Oppegard is a sole practitioner with over 35
years of experience specializing in mine safety matters, including
representation of numerous 105(c) complainants. Response to Order to Show
Cause, Ex. 1 at 1 (Jan. 13, 2016).

As previously noted, section 105(c)(3) authorizes
the Commission to “grant[] such relief as it deems appropriate” including
monetary relief and reimbursement for reasonable attorney fees, when the
Commission determines, based upon “findings of fact,” that discrimination has
occurred. 30 U.S.C. § 815(c)(3). To determine the appropriate relief to be
awarded, longstanding Commission case law has recognized the utility of bifurcating
decisions on liability and decisions on relief in section 105(c) proceedings.[3]
Bifurcation preserves Commission resources by avoiding the unnecessary
development of a record regarding the appropriate relief to be awarded in cases
where the discrimination complaint is dismissed after an evidentiary hearing on
liability. See, e.g., Metz v. Carmeuse Lime, Inc., 34
FMSHRC 1820 (Aug. 2012), aff’d Metz v. FMSHRC, 532 F.App’x 309, 2013 WL
3870733 (3d Cir. 2013). Although bifurcated decisions on liability are not
final, in that they are not ripe for Commission appeal until a decision on
relief is rendered, the decision on liability is a final disposition on the
merits with respect to liability. Thus, absent a petition for discretionary
review filed with the Commission, a mine operator that is found liable in a
decision on liability following a hearing is collaterally estopped from denying
liability in a related civil penalty proceeding.

The parties may not mutually agree to vitiate a
post-adjudication decision on liability   through a mutual agreement that both insulates
a mine operator from the adverse history of a 105(c) violation, and releases
the operator from the resultant civil penalty liability that must be imposed as
a consequence of that violation. 30 U.S.C. §§ 814(a), 815(a); 29 C.F.R.       §
2700.44(b). To hold otherwise would render Commission decisions on liability in
bifurcated 105(c) proceedings as advisory opinions that are analogous to
decisions by non-binding alternative dispute resolution bodies that may be
disregarded at the whim of the parties. Additionally, allowing the parties to
agree to release the mine operator from its 105(c) transgression is contrary to
the deterrent goals of the Mine Act.

Furthermore, the parties’ September 2, 2015,
Joint Motion to Dismiss was problematical because it conflated the concepts of motions
to approve settlement and petitions for relief. There is a significant
substantive distinction between determining post-adjudicative relief in
bifurcated proceedings through a motion to approve settlement, as the parties
suggest, and through a traditional petition for relief. In exercising oversight
over motions to approve settlement, the authority of a Commission judge is
limited to only approving or denying the settlement terms, as the judge lacks
the authority to impose his terms, rather than those proposed by the parties. Thus,
giving effect to the parties’ proposed settlement would preclude the Commission
from exercising its statutory authority to award only attorney fees that have
been “reasonably incurred by the miner.” In contrast, the appropriate relief to
be awarded in this matter must be determined in a decision on relief. As such,
the issue of the appropriate monetary relief remains committed to the sound
discretion of the judge. Sec’y of Labor o/b/o Maxey v. Leeco, Inc., 20
FMSHRC 707 (July 1998).

Consequently, on October 21, 2015, the parties’
September 2, 2015, Joint Motion to Dismiss was denied. At that time, the
parties were instructed that, regardless of whether they styled any future
agreements on relief as a joint petition, or as a motion to approve settlement,
their proposed agreement would be construed as a joint petition for relief. 37
FMSHRC at 2514. McGlothlin’s counsel were also instructed to submit fee
petitions supporting their requested attorney fee reimbursement. Id.

In response to the denial of the parties’
initial proposed settlement, on November 11, 2015, the parties submitted a
revised Joint Motion to Approve Settlement. In an attempt to rectify the
previously-submitted terms for relief in which Dominion sought to absolve
itself of liability, the parties stated that their proposed terms now
“include[] Dominion’s waiver of its right to appeal this Court’s Decision on
Liability.” Jt. Mot. to Approve Settlement, at 2 (Nov. 11, 2015). At that time,
ACLC and Oppegard submitted separate fee petitions reflecting a total of $112,465.48
for legal services. For the purpose of settlement, the parties also reiterated
their

proposals to both compensate McGlothlin with back pay of
$45,942.61 and to reimburse ACLC and Oppegard a total of $88,975.48 in attorney
fees.[4]
Confidential Settlement Agmt., at 2  (Nov. 11, 2015).

In response to the parties’ November 11, 2015, resubmitted
settlement motion,    on December 21, 2015, ACLC and Oppegard were ordered to
show cause:

-         
Why the [$200.00 and $350.00] hourly rates for ACLC and Oppegard,
respectively, are reasonable;

-         
Why the total 331.1 hours claimed for legal services are reasonable;

-         
Why the services rendered were necessary and not duplicative, given the
fact that many of the fees are based on individual reimbursement to each
attorney for calls and emails to each other, and for the reading and reviewing
of filings in this matter; and

-         
Why either ACLC or Oppegard could not have solely and competently
represented McGlothlin, as 105(c) discrimination cases are within each
attorneys’ area of expertise.

Order to Show Cause, 37 FMSHRC __, slip op. at 4 (Dec. 21,
2015) (ALJ).

ACLC and Oppegard responded to the Order to Show
Cause on January 13, 2016.

A.    Commission
Authority to Direct Reimbursement

As an initial matter, in response to the order
to show cause, McGlothlin’s counsel objected to Commission oversight of the
relief to be awarded in this 105(c) discrimination proceeding. Specifically,
McGlothlin’s counsel stated:

Mr. McGlothlin’s counsel first seek to
clarify the posture of the case. Counsel have not petitioned your Honor for
fees. We believe the Commission lacks the authority to review the attorneys’
fees portion of the parties’ settlement. Counsel for Mr. McGlothlin object
to Commission review of their undisputed fees, and specifically, their hours
and rates, which were agreed to as a compromise between the parties.

The parties’ tendered settlement should
be summarily approved as it provides Mr. McGlothlin with all the relief
available under the Mine Act. It is not necessary for your Honor to engage
in an analysis of what attorneys’ fees are reasonable. Dominion Coal today
confirmed that it has no objection to the hourly rates or hours incurred.

Resp. to Order to Show Cause, at 1-2 (Jan. 13, 2016) (emphasis
added).

I am troubled by the dismissive approach taken
by McGlothlin’s counsel with respect to the Commission’s role in ensuring that
only reasonable and necessary attorney fees are reimbursed pursuant to the
direction of section 105(c) of the Mine Act. While mine operators may be willing
to acquiesce to the reimbursement of attorney fees ultimately deemed excessive,
the Mine Act sets the parameters for the Commission’s award of relief in
discrimination matters.[5]
In this regard, section 105(c)(3) states, in pertinent part:

. . . [in] granting such relief as [the
Commission] deems appropriate, [the Commission shall award] . . . 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.
. . . 

30 U.S.C. § 815(c)(3) (emphasis added). The appropriate
relief to be awarded in discrimination matters is committed to the sound
discretion of the judge, which, of course, is subject to appellate review by
the Commission. Sec’y of Labor o/b/o Ribel v. E. Assoc. Coal Corp., 7
FMSHRC 2015, 2027 (Dec. 1985), rev’d on other grounds 813 F.2d 639 (4th
Cir. 1987); see also Reid v. Kiah Creek Mining Co., 15 FMSHRC 390
(March 1993); Maxey, 20 FMSHRC at 707. McGlothlin’s counsel should not
be allowed “to seek the benefits of a favorable judicial decision” on liability,
but yet avoid the Commission’s exercise of discretion in determining the
reasonableness of the relief to be awarded “through an artful attempt at
dismissal of the case long past the eleventh hour.” Suntharalinkam v.
Keisler, 506 F.3d 822, 829-30 (9th Cir. 2007) (citations omitted).

In the final analysis, the parties’ reliance on
the significance of their agreed-upon terms is misplaced. The Commission has
acknowledged that its authority to review the propriety of settlement motions
conferred in section 110(k) of the Act extends to settlement agreements arising
under section 105(c) of the Act. 30 U.S.C. § 820(k); Maxey, 20 FMSHRC at

707.   In view of the case law and the Commission’s statutory mandate, the
parties’ agreement on reimbursement does not alter the Commission’s
responsibility to exercise its delegated authority to determine the
reasonableness of the relief to be awarded in this proceeding. At the risk of
stating the obvious, agreed-upon terms, whether in motions for approval of
settlement, or petitions for relief, are a condition precedent for the
Commission’s consideration of whether such terms are reasonable and should be
approved. The Commission routinely approves or denies such agreements. Thus, while
the parties’ agreement is relevant, it is not dispositive.

B.     Confidentiality

Not only have the parties sought to circumvent
the Commission’s consideration of the reasonableness of their proposed terms of
relief, the parties have also requested that their proposed relief remain
confidential. This request was denied in a November 18, 2015, order as public
disclosure of the parties’ proposed terms is required in instances where the
parties’ proposed terms of relief, including attorney fees, are either
disputed, or not approved by the judge. 37 FMSRHC 2676 (Nov. 2015) (ALJ); see,
e.g., Pendley v. Highland Mining Co. and James Creighton, 37
FMSHRC 2226 (Sept. 2015) (ALJ). Furthermore, the parties do not have an
unfettered right to confidentiality. Commission decisions are public documents
that should be available for public review. Confidentiality, which necessitates
concealment from the public, should be narrowly approved, for example, in instances
where disclosure threatens proprietary interests. Rather, Commission findings
of operator liability and the relief to be awarded to litigants in a Mine Act
proceeding deserve to see the light of day. Public disclosure fosters the Mine
Act’s goal of deterring similar discriminatory acts. Disclosure also furthers
the Commission’s ability to determine if proposed legal fees are reasonable
through a comparative analysis of past awards.[6]

III.            
McGlothlin’s Relief

A.          Back
Pay and Incidental Expenses

In awarding relief to section 105(c)
discriminatees, “[t]he Commission endeavors to make miners whole and to return
them to their status before illegal discrimination occurred.” Clifford Meek,
15 FMSHRC at 617 (citations omitted). In doing so, the Commission has stated
that monetary relief is awarded “to restore the discriminatees, as nearly as we
can, to the enjoyment of the wages and benefits they lost as a result of [the
discrimination].” Sec’y of Labor o/b/o Dunmire v. N. Coal Co., 4 FMSHRC 126,
143 (Feb. 1982).

The Decision on Liability noted that
McGlothlin’s back pay should be computed based on the difference in the
compensation paid to McGlothlin and the compensation that he is entitled to as
a Part 90 miner, plus interest, and reimbursement for any other relevant
incidental expenditures. 37 FMSHRC at 1265-66. The parties propose that the
amount of relief to be awarded to McGlothlin should be $45,942.61. This amount
constitutes the difference in the compensation that was paid to McGlothlin, and
the compensation that he was entitled to as a Part 90 miner between period June
2013 and April 2015, when McGlothlin’s employment with Dominion ceased, in
addition to incidental expenses incurred.

The total $45,942.61 relief proposed is reasonable,
as it is readily supported by the difference in hourly pay that McGlothlin was
due as a Part 90 miner during the relevant    22 month period, plus a
reasonable amount of claimed additional incidental expenses.

B.     Reimbursement
of Attorney Fees

Section 105(c)(3) sets forth two
requirements for the reimbursement of attorney fees. Namely: 1) that an order
be issued “sustaining the complainant’s charges”; and 2) that the attorney fees
sought to be awarded have been “reasonably incurred.” 30 U.S.C. §815(c)(3);   E.
Assoc. Coal Corp., 7 FMSHRC at 2025. Dominion’s liability having been
determined, the focus of this inquiry shifts to the reasonableness of the
attorney fees sought to be reimbursed.   In addressing the issue of reasonable
attorney fees, courts look to the lodestar standard, which requires the
multiplication of an attorney’s reasonable hourly rate by the reasonable number
of hours expended. See Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,
551-52 (2010); Blum v. Stenson, 465 U.S. 886 (1984). ACLC and Oppegard
bear the burden of establishing that the hourly rates charged are reasonable
and that the legal services provided by them were necessary and
non-duplicative. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).  

1.      Reasonable
Hourly Rate

With respect to hourly rate, “an
attorney’s usual billing rate is presumptively the reasonable rate, provided
that this rate is ‘in line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience, and
reputation.’” Covad Comm’n Co. v. Revonet, Inc., 267 F.R.D. 14, 29
(D.D.C. 2010) (citing Kattan ex rel. Thomas v. D.C., 995 F.2d 274, 278
(D.C. Cir. 1993)). A reasonable hourly rate, however, must be one that is
adequate to attract competent counsel in the relevant legal market, but yet
does not produce a windfall to that attorney. Blum, 465 U.S. at 894-95.

As noted above, ACLC is seeking
compensation at an hourly rate of $200.00 per hour, and Oppegard is seeking
compensation at an hourly rate of $350.00 per hour. In situations “where there
is only a relatively small number of comparable attorneys, like here, an
adjudicator can look to prior awards for guidance in determining a prevailing
market rate.” B&G Mining, Inc. v. Dir., Office of Workers’ Comp.
Programs, 522 F.3d 657, 664 (6th Cir. 2008). With regard to ACLC’s claimed reimbursement
at a rate of $200.00 per hour for the work performed by Evan Smith, recent
cases have awarded ACLC attorneys between $200.00 and $250.00 per hour. See,
e.g., Howard, 32 FMSHRC at 1923; Pendley, 37 FMSHRC at 2229;
see also Resp. to Order to Show Cause, Ex. 2 (Jan. 13, 2016) (listing black
lung benefits cases in which Smith was awarded attorney fees of $225.00 and
$250.00 per hour). Considering ACLC’s expertise in the field of 105(c)
discrimination cases, I find that ACLC’s claim for an award of compensation at rate
of $200.00 per hour is reasonable.

With regard to Oppegard’s claimed
reimbursement, I am cognizant that Commission judges have, in the past, granted
Oppegard’s claims for reimbursement of attorney fees at rates ranging from
$400.00 to $500.00 per hour, presumably based on Oppegard’s superior expertise
in 105(c) discrimination matters. See, e.g., Howard, 32
FMSHRC at 1923; Pendley,     37 FMSHRC at 2229. However, it is important
to distinguish between aspirational hourly rates that attorneys may seek from private
clients from those that should be awarded pursuant to the fee shifting
provisions promulgated by Congress in section 105(c) of the Mine Act.

It is the reasonable rate, rather
than the aspirational rate, that should govern, for it is axiomatic that “[h]ours
that are not properly billed to one’s client also are not properly billed to
one’s adversary pursuant to statutory authority.” Copeland v. Marshall,
641 F.2d 880, 891 (D.C. Cir. 1980). In other words, if it is
unreasonable to charge a private client an excessive hourly rate for legal
services, then an adversary may not be ordered to reimburse this improper
hourly rate pursuant to a federal statute. Charging a miner, a private client,
between $400.00 and $500.00 per hour for Oppegard’s services in 105(c)
proceedings is blatantly unreasonable and unrealistic, even if a miner could
afford such rates.

However, I find that Oppegard’s current
claim for an award of a somewhat lower compensation rate of $350.00 per hour is
reasonable. I believe that this additional $150.00 per hour above the $200.00
hourly rate sought by ACLC adequately compensates Oppegard, as contemplated by
the Mine Act, for his level of experience in representing miners in Commission
proceedings. I also believe that attorney fee rates ranging from $200.00 to
$350.00 per hour are sufficient to attract capable legal representation for
miners bringing discrimination complaints on their own behalf.

2.      Reasonable
Hours, Duplication of Services and Multiple Attorneys

With regard to the reasonable number of hours
expended, hours may be deemed unreasonable if they are duplicative, wasteful,
or merely excessive. Hensley, 461 U.S. at 424. On this point, in Hays
v. Leeco, Inc. Judge Koutras explained:

In Johnson v. Georgia
Highway Express, Inc., [488 F.2d 714, 720 (5th Cir. 1974)], the Fifth
Circuit Court of Appeals stated “If more than one attorney is involved,
the possibility of duplication of effort along with the proper utilization of
time should be scrutinized. The time of two or three lawyers in a courtroom or
conference when one would do, may obviously be discounted.” Likewise, in Copeland v. Marshall,
supra, at 641 F.2d 891, the D.C. Circuit Court of Appeals, stated “. .
. where three attorneys are present at a hearing when one would suffice,
compensation should be denied for the excess time.” See also Charles v. National
Tea Co., 488 F. Supp. 270 (D.C. W.D. La. 1980), where the court
cited Johnson v. Georgia Highway Express, Inc., supra, and
stated at 488 F. Supp. 276 that “The time of two (2) lawyers in a
courtroom when one would do, may obviously be discounted.”

13 FMSHRC 670, 690 (Apr. 1991) (ALJ) (PDR denied), rev’d
on other grounds 965 F.2d 1081 (D.C. Cir. 1992). Such duplication of
efforts “inevitably occurs when lawyers hold conferences, call each other on
the phone, write each other letters and memoranda, or when several lawyers bill
for reading the same document received from the defendants or the court.” Chavez
v. Mercantil Commercebank, N.A., 2015 WL 136388, at *4 (S.D. Fla. Jan. 9,
2015). In Hays, Judge Koutras determined that legal fees sought by both
Oppegard and Stephen Sanders, who is currently Director of ACLC, were duplicative,
and only awarded fees to one attorney.[7] 
 Hays, 13 FMSHRC at 694.

a.       McGlothlin’s
Representation by Multiple Attorneys

As noted above, ACLC and Oppegard are seeking
reimbursement for 331.1 hours of combined legal services, which equates to
approximately two months of five-day work weeks. In support of their dual fee
petition, counsel for McGlothlin rely on the fact that it is not uncommon for
multiple attorneys to appear on behalf of parties in Mine Act proceedings.   See
Resp. to Order to Show Cause, Ex. 1. This assertion begs the question whether
such services are reimbursable. Of course, services by multiple attorneys are
reimbursable, provided that they are necessary and non-duplicative. For
example, different elements of litigation, such as trial work, discovery, and
briefing, may be divided among several attorneys, so long as their efforts are
not duplicative. However, the sum of the parts cannot be greater than the
whole. By way of illustration, billing for two fully-qualified attorneys who
appear at an eight hour deposition, may not be multiplied by a factor of two
resulting in a requested reimbursement for 16 hours, if only one attorney
conducts the deposition. Although the deposition tasks may be shared, the total
amount billed should not exceed eight hours.

In this regard, as previously noted, hours not
properly billable to a client are not billable to an adversary through a fee
shifting statute such as section 105(c) of the Mine Act. Copeland, 641
F.2d at 891. It is implausible that a miner would retain multiple law firms,
who are each a competent representative, and yet agree to incur duplicate legal
fees as a consequence of dual representation. Simply put, the appearance of
multiple attorneys does not, in and of itself, provide a basis for
multiplication of fees.

b.      Complexity
of Representation

In support of their dual fee
petition, counsel for McGlothlin also rely on the purported novelty and
complexity of this case to justify the number of hours sought to be reimbursed.
Resp. to Order to Show Cause, at 14-17. Their novelty and complexity argument
is belied by ACLC and Oppegard’s dual participation in previous proceedings. In
Pendley, over the objection of the respondent’s counsel that the fees
sought were both excessive with regard to the hourly fee claimed and duplicative,
the judge awarded ACLC Deputy Director Wes Addington and Oppegard a total of
$84,125.15, including expenses, for a combined total of 214.2 hours of legal
work. 37 FMSHRC at 2231. Unlike the present case, which was decided by summary
decision, Pendley was decided after a hearing on the merits. To support
the award of dual attorney fees, the judge credited counsel’s assertion that
the Pendley case was “novel” and determined that it “presented a fairly
complex and unique set of facts.” Id. at 2227.

Given the arguments in Pendley, the
present case is not the first case where McGlothlin’s counsel relied on novelty
to justify their requested award of dual attorney fees. In any event, the
dispositive law in this case was not extraordinarily difficult, in that it only
required application of the plain language of section 105(c) that mine
operators may not “interfere with the exercise of the statutory rights of
any miner . . . [who] is the subject of medical evaluations.” 30 U.S.C. §
815(c)(1). As discussed in the Decision on Liability, McGlothlin was
transferred to a lower-paying job during the pendency of his pertinent medical
evaluation. 37 FMSHRC at 1261. Specifically, McGlothlin prevailed because the
irrefutable evidence reflected that he was transferred to a lower paying
position on June 3, 2013, during the pendency of his Part 90 evaluation, which
spanned from April 30 to June 6, 2013. Id. at 1263. Consequently, when
viewed in context, counsel’s current assertion that this case warrants dual
attorney fees based on its novelty and complexity is unpersuasive.

Moreover, McGlothlin’s counsel’s
assertion that case complexity, as a general proposition, necessitates dual
representation is further belied by their pattern of appearing as  co-counsel
in numerous section 105(c) discrimination cases in recent years.[8]
See, e.g., Pendley v. Highland Mining Co., 37 FMSHRC 2226
(Sept. 2015) (ALJ Andrews); Shemwell v. Armstrong Coal Co., Inc., 36
FMSHRC 2352 (Aug. 2014) (ALJ McCarthy); Sec’y of Labor o/b/o Riordan v. Knox
Creek Coal Corp., 36 FMSRHC 1050 (Apr. 2014) (ALJ Moran); Shemwell v.
Armstrong Coal Co., Inc., 35 FMSHRC 726 (Mar. 2013) (ALJ Feldman); Sec’y
of Labor o/b/o Flener v. Armstrong Coal Co., Inc., 34 FMSHRC 1658 (July
2012) (ALJ Simonton); Sec’y of Labor o/b/o Green v. D&C Mining Corp.,
33 FMSHRC 243 (Jan. 2011) (ALJ Harner); Gray v. North Fork Coal Corp.,
33 FMSHRC 2495 (Oct. 2011) (ALJ Rae); Howard v. Cumberland River Coal Co.,
32 FMSHRC 983 (Aug. 2010) (ALJ Hodgdon); Sec’y of Labor o/b/o Wilder v.
Private Investigation and Counter Intelligence Servs., Inc., et al, 33
FMSHRC 1667 (July 2011) (ALJ Gill).[9]

c.       Propriety
of Submitted Fee Petitions

Having concluded that McGlothlin’s
counsel’s reliance on the appearance of two attorneys and on the purported
complexity of the case, do not, alone, justify the reimbursement sought for
331.1 hours of attorney fees, the focus shifts to whether the hours claimed for
reimbursement are duplicative. The dual fee petitions submitted by ACLC and
Oppegard present the hallmarks of duplicative legal services created by the
appearance of two attorneys when one would suffice.

As noted above, both ACLC and
Oppegard are eminently qualified to represent discrimination complainants in
Mine Act proceedings. Yet a substantial amount of the hours claimed for
reimbursement by ACLC and Oppegard are for duplicative services, which results
in an effective claimed hourly rate of $550.00 per hour ($200.00 per hour for
ACLC plus $350.00 per hour for Oppegard). As a representative sample of duplicative
entries in their respective fee petitions, both ACLC and Oppegard billed for
time spent on telephone calls with each other (see, as examples, fee petition
entries for 3/27/14, 4/1/14, 4/25/14, 7/21/14, 7/30/14, 9/30/14, 10/1/14, 10/20/14,
1/6/15, 1/7/15, 1/21/15, 1/26/15, 2/12/15, 3/18/15, 4/21/15, and 6/12/15). The
fee petitions of both counsel also reflect billings for time spent drafting and
reading emails between one another (see, as examples, fee petition entries for
7/29/14, 9/21/14, 10/6/14, 10/16/14, 10/23/14, 10/24/14, and 1/8/15), by both
counsel for participation in conference calls with the court (see, as examples,
fee petition entries for 7/30/14, 10/28/14, and 2/12/15), meetings with
McGlothlin (see, as examples, fee petition entries for 10/7/14 and 1/7/15) and
depositions (see, as examples, fee petition entries for 1/13/15, 1/14/15, and
1/15/15). Additionally, both counsel billed for time spent reviewing the same
document (see, as examples, fee petition entries 7/21/14, 10/1/14, 10/10/14, 10/29/14,
11/7/14, 11/17/14, 1/6/15, 1/21/15, 1/23/15, 4/28/15, 5/12/15, and 6/12/15). Such
claims can only reasonably be reimbursed under the Mine Act for the efforts of
one attorney, rather than twice for the duplicative efforts of both counsel.

In addition to the duplicative
nature of McGlothlin’s counsel’s fee petitions, claims for reimbursement by
both the author and editor of a brief are also problematical (see, as examples,
fee petition entries for 9/9/14, 9/17/14, 9/18/14, and 9/19/14; 2/18/15,
2/24/15, 3/17/15, and 3/18/15; 4/24/15, 4/28/15, and 5/1/15). Initially, such
claims raise the question of whether reimbursement to the author of the brief
is appropriate if the author’s efforts were inadequate by virtue of the need
for significant editing. Moreover, claims for reimbursement for
exchanges of edits between the author and editor are self-serving in that it is
impossible to evaluate whether the purported edits were necessary.[10]

In sum, I find that 89.55 hours of
the total 331.1 hours claimed for reimbursement by ACLC and Oppegard, based on
redundant fee petition entries, are “duplicative, wasteful, or merely
excessive.” See Hensley, 461 U.S. at 424. As such, I find that a total
of 241.55 hours were reasonably billed by ACLC and Oppegard. Filings in this
proceeding, as well as counsel’s respective fee petitions, reflect that ACLC has
served as lead counsel. Accordingly, billed time by both ACLC and Oppegard that
is deemed duplicative shall only be credited to ACLC. Thus, with respect to the
total 241.55 hours credited, I find that 210.25 hours were reasonably billed by
ACLC, and that 34.3 hours were reasonably billed by Oppegard for services that
were not duplicative, such as his efforts with regard to FOIA and discovery. Consequently,
applying the lodestar standard, ACLC and Oppegard are entitled to a fee
reimbursement totaling $54,055.00, computed at $200.00 per hour, and $350.00
per hour, respectively.

In addition, McGlothlin’s counsel
are seeking a total of $4,165.48 in incidental expenses. I find that Oppegard’s
$990.66 in claimed expenses incurred through his attendance at depositions and
meetings to be duplicative. Consequently, $3,174.82 in incidental expenses
shall be reimbursed. In sum, I find a total attorney fee reimbursement,
including incidental expenses, of $57,229.82 to be reasonable under section
105(c) of the Mine Act.

As a final matter, it is “always
difficult and sometimes distasteful” when courts are called upon to evaluate
the reasonableness of attorney fees. Johnson, 488 F.2d at 720. I would
have preferred that the fee petitions filed by McGlothlin’s counsel were
reasonable, negating the need for my intervention. I also regret the parties’
repeated requests for approval of confidential settlement terms, despite the
fact that the parties were ordered to submit petitions for relief. It is
unfortunate that the parties’ posture in this matter has resulted in an undue
delay of the payment of monetary relief to McGlothlin.

In the final analysis, the issue in
a 105(c) proceeding is not the amount of reimbursement a mine operator is
willing to pay. Rather, the issue is whether the amount of reimbursement the Commission
is being requested to direct a mine operator to pay under its delegated statutory
authority is reasonable. I decline to legitimize a pattern of dual
representation that may have resulted in the recovery of duplicative and
unnecessary attorney fees under color of authority of the fee shifting
provisions of 105(c) of the Mine Act. See Blum, 465 U.S. at 894-95.

ORDER

In view of the above, consistent with the June
11, 2015, Decision on Liability, which held that Dominion Coal Corporation
violated the anti-discrimination provisions of section 105(c) of the Mine Act:

1.     
IT IS ORDERED that Dominion Coal Corporation pay Scott D.
McGlothlin $45,942.61 less pertinent federal, state, and local taxes, as
compensation for lost wages and incidental expenses within 45 days of this
Decision;

2.      IT
IS FURTHER ORDERED that Dominion Coal Corporation pay Scott D. McGlothlin’s
attorneys, Appalachian Citizens’ Law Center, Inc. and Tony Oppegard, via a
joint check, $57,229.82 within 45 days of this Decision as reimbursement
for attorney fees and the attorneys’ incidental expenses;[11]

3.      IT
IS FURTHER ORDERED that Dominion Coal Corporation shall post the June 11,
2015, Decision on Liability in this matter at all of its active mines for 60
consecutive days from the date of this Decision in conspicuous, unobstructed
places where notices to employees are customarily posted; and

4.      IT
IS FURTHER ORDERED that Dominion Coal Corporation expunge any reference to
this discrimination proceeding, if any, from McGlothlin’s employee records, and
that Dominion Coal Corporation is prohibited from providing any negative
references that would interfere with McGlothlin’s ability to obtain future
employment.

IT IS FURTHER ORDERED that
the Decision on Liability, 37 FMSHRC 1256 (June 2015) (ALJ), and the Decision
on Relief constitute the final disposition of this discrimination proceeding. Upon
timely satisfaction of the relief ordered above, the captioned discrimination
proceeding in Docket No. VA 2014-233 IS DISMISSED.

/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]
Section 105(c)(1) provides, in relevant part:

No person shall . . . in any manner
discriminate . . . or cause discrimination against or otherwise interfere with
the exercise of the statutory rights of any miner . . . [who] is the subject of
medical evaluations and potential transfer under a standard published pursuant
to section 101 . . . .

30 U.S.C. § 815(c)(1).

[2] Under 30 C.F.R. Part 90, a miner determined to have
evidence of the development of pneumoconiosis must be given the opportunity to
work in a less dusty area of a mine without loss of pay.

[3]
See, e.g.,
Sec’y of Labor o/b/o Lopez v. Sherwin Alumina, LLC, 36 FMSHRC 730 (Mar.
2014) (ALJ Bulluck) (decision on liability requesting a follow up petition for
relief from the parties);

Descutner
v. Newmont USA,
34 FMSHRC 2838 (Oct. 2012) (ALJ Barbour) (decision on liability), and
Descutner v. Newmont USA, 35 FMSHRC 504 (Feb. 2013) (ALJ Barbour) (decision
on relief); Jeanlouis v. Morton Int’l, 25 FMSHRC 536 (Sept. 2003) (ALJ
Feldman ) (decision on liability), and Jeanlouis v. Morton Int’l, 25
FMSHRC 673 (Nov. 2003) (ALJ Feldman) (decision on relief); Womack v. Gramont
W. US, 25 FMSHRC 235 (May 2003) (ALJ Feldman) (decision on liability), and
Womack v. Gramont W. US, 25 FMSHRC 469 (Aug. 2003) (ALJ Feldman) (decision
on relief); Gawthrop v. Triplett Bros. Excavating, 17 FMSHRC 64 (Jan.
1995) (ALJ Feldman) (decision on liability), and Gawthrop v. Triplett Bros.
Excavating, 17 FMSHRC 359 (Mar. 1995) (ALJ Feldman) (decision on relief); Adkins
v. Ronnie Long Trucking, 21 FMSHRC 171 (Feb. 1999) (ALJ Hodgdon) (decision
on liability), and Adkins v. Ronnie Long Trucking, 21 FMSHRC 377 (Mar.
1999) (ALJ Hodgdon) (decision on relief); Meek v. Essroc Corp., 13
FMSHRC 1970 (Dec. 1991) (ALJ Fauver) (decision on liability), and Meek v.
Essroc Corp., 14 FMSHRC 518 (Mar. 1992) (ALJ Fauver) (decision on relief), aff’d
Meek v. Essroc Corp., 15 FMSHRC 606 (Apr. 1993).

[4]
ACLC and Oppegard initially claimed $88,975.48 in total legal fees and expenses
based on a reported total expenditure of 331.1 hours of legal services billed
at rates of $200.00 per hour for ACLC, and $350.00 per hour for Oppegard. See
Confidential Settlement Agmt., at 2 (Sept. 2, 2015). Upon being required to
support the legal fees claimed, ACLC and Oppegard subsequently submitted
separate fee petitions that sought a total of $112,465.48 in total legal fees
and expenses based on the same total of 331.1 hours of legal services billed at
rates of $225.00 per hour for ACLC, and $500.00 per hour for Oppegard. Despite
their fee petitions, to resolve this discrepancy, on January 13, 2016, ACLC and
Oppegard clearly represented that they are seeking a total of $88,975.48 based
on the hourly rates for their services as initially claimed, regardless of
whether the parties’ proposed settlement terms were approved. Resp. to Order to
Show Cause, at 2-3.

[5] The scope of this decision is limited to the
reimbursement of attorney fees that should be authorized under the Mine Act. Obviously,
nothing herein precludes Dominion from paying McGlothlin’s counsel attorney
fees higher than those awarded in this proceeding. However, courts should not
give effect to proposed agreements proffered during proceedings that contravene
the purpose of the litigation. See, e.g., Prandini v. National
Tea Co., 557 F.2d 1015 (3d Cir. 1977) (defendant’s agreement to pay higher
legal fees to plaintiff’s counsel in exchange for an agreement on the merits
that is favorable to the defendant). Here, the parties’ initial September 2,
2015, proposal impermissibly sought to relieve Dominion of liability for its
discriminatory conduct.

[6] I am aware of only two recent Commission cases that
specify the attorney fees reimbursed to ACLC and Oppegard pursuant to the fee
shifting provisions of section 105(c)(3). See Pendley, 37 FMSHRC at 2229
(awarding Oppegard and Addington of ACLC a total of $84,125.15 in attorney
fees); Howard v. Cumberland River Coal Co., 32 FMSHRC 1923 (Dec. 2010)
(ALJ) (awarding Oppegard and Addington a total of $124,174.00 in attorney
fees). Apparently, the attorney fees awarded to ACLC and Oppegard in the
majority of other recent 105(c)(3) cases in which they have appeared have not
been made public.

[7] The Commission denied Leeco Inc.’s petition for
discretionary review of the initial decision. However, on appeal the D.C.
Circuit reversed and remanded Judge Koutras’s underlying decision on liability.
965 F.2d 1081 (D.C. Cir. 1992). On remand, the parties reached a settlement,
which was apparently approved by the Commission. See 1992 WL 533506 (FMSHRC
Oct. 21, 1992).

[8]
In the current case, ACLC and Oppegard’s dual representation apparently was
initiated by Oppegard’s suggestion that he and ACLC represent McGlothlin
collaboratively. Confidential Settlement Agmt., Ex. A at 5 (Nov. 11, 2015).

[9] ACLC and
Oppegard have jointly appeared in numerous 105(c)(2) cases brought by the
Secretary. See, e.g., Sec’y of Labor o/b/o Riordan v. Knox
Creek Coal Corp., 36 FMSHRC 1050 (Apr. 2014) (ALJ Moran); Sec’y of Labor
o/b/o Flener v. Armstrong Coal Co., Inc., 34 FMSHRC 1658 (July 2012) (ALJ
Simonton); Sec’y of Labor o/b/o Wilder v. Private Investigation and Counter
Intelligence Servs., Inc., et al, 33 FMSHRC 1667 (July 2011) (ALJ Gill); Sec’y
of Labor o/b/o Green v. D&C Mining Corp., 33 FMSHRC 243 (Jan. 2011)
(ALJ Harner). It is well-settled based on long-standing federal appellate and
Commission case law that private attorneys are not entitled to any attorney
fees in cases brought by the Secretary pursuant to section 105(c)(2) of the
Mine Act. See E. Assoc. Coal Corp. v. FMSHRC 813 F.2d 639, 644 (4th Cir.
1987); see also Sec’y o/b/o Gilbert v. Sandy Fork Mining Co., 9 FMSHRC
1327, 1339 n.6 (Aug. 1987) (citing Maggard v. Chaney Creek Coal Co., 9
FMSHRC 1314, 1322 (Aug. 1987) (Commission holding recognizing the Fourth
Circuit’s decision in Eastern Associated, that no attorney fees may be
awarded to private attorneys in section 105(c)(2) proceedings)). Thus, given Eastern
Associated, and its Commission progeny, it is noteworthy that private
counsel may not collect legal fees from complaining miners in cases
brought by the Secretary on the miners’ behalf, either in adjudicated section
105(c)(2) proceedings, or in 105(c)(2) proceedings resolved through the
Commission’s approval of settlement terms. See Dunmire, 4 FMSHRC at 143
(monetary relief is awarded “to restore the discriminatees, as nearly as we
can, to the enjoyment of the wages and benefits they lost as a result of [the
discrimination]”). In other words, a complaining miner is not made whole if he
is under the mistaken belief that he is personally liable for legal services
deemed, by law, to be unnecessary. Simply stated, monetary relief awarded by
the Commission to complaining miners in section 105(c)(2) cases may not be
shared with private counsel.

[10] Although the reimbursements sought shall be reduced due
to duplicity, it is noteworthy that ACLC and Oppegard presented fee petitions
containing “block billing.” Block billing is the practice of “lumping together
multiple tasks into a single entry of time without separating tasks into
individual blocks or elaborating on the amount each task took.” Chavez,
2015 WL 136388, at *4 (citations and quotations omitted). By way of example,
Oppegard’s fee petition includes the following entry for January 19, 2015:

[fn.10
cont’d]

Talk
with Alicia re: Tim Thompson interviewing employees after depositions were
completed; make notes of conversation; review Judge Feldman’s written order
granting our motion to quash the subpoena for Sheila Keiser; draft e-mail to

Evan
re: subpoenaing witness for deposition; review Evan’s e-mail to Hardy &
Wickline re: notes from Avery Stollings’s notebook.

Confidential
Settlement Agmt., Ex. A at 22 (Nov. 11, 2015). The practice of block billing
makes fee petitions difficult to review, especially in instances where more
than one attorney is seeking reimbursement.

[11] Although I believe the calculated division of the
reimbursable legal services of ACLC and Oppegard to be just and adequate, ACLC
and Oppegard are free to divide this total as they see fit.