<DOC>
[DOCID: f:eaj20013o1.wais]
DYNATEC MINING CORPORATION
May 17, 2001
EAJ 2001-3
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
May 17, 2001
DYNATEC MINING CORPORATION, : EQUAL ACCESS TO JUSTICE
Applicant : PROCEEDING
:
: Docket No. EAJ 2001-3
v. :
: Formerly WEST 94-645-M
:
: Magma Mine
SECRETARY OF LABOR, : ID. No. 02-00152 WJ6
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
Respondent :
ORDER DENYING SECRETARY'S MOTION TO STAY
The Secretary filed a motion to stay this Equal Access to
Justice Act ("EAJA") case on the basis that Dynatec appealed the
Commission's decision in the underlying case with respect to
Citation No. 4410466 and Order No. 4410468. She states that she
is requesting the stay to avoid unnecessary fragmentation of fee
petitions and the resultant waste of judicial resources. She
requests that this proceeding be stayed until the court of
appeals issues its decision with respect to the citation and
order.
Dynatec opposes the stay. Dynatec argues that the Secretary
is not entitled to a stay and that proceeding with this fee
petition will not result in the unnecessary fragmentation of fee
petitions. For the reasons set forth below, I agree with Dynatec
and deny the motion for a stay.
The Secretary relies, in part, on 29 C.F.R. � 2704.206(b).
That rule provides, in pertinent part, that if "review . . . 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." In this case, the
Secretary did not appeal the Commission's decision. As stated
above, Dynatec appealed the Commission's decision affirming
Citation No. 4410466 and Order No. 4410468. The Secretary
contends that, as a consequence, this EAJA proceeding should be
stayed.
The Secretary's reliance on section 2704.206(b) is
misplaced. Although the regulation does not directly limit its
application to situations in which the Secretary appeals a
Commission decision, I believe that the Commission did not intend
to force an ALJ to stay an EAJA proceeding under the present
circumstances. The language of the EAJA provides that when "the
United States appeals the underlying merits" in a case, "no
decision on an application for fees and other expenses shall be
made . . . until a final and unreviewable decision is rendered by
the court of appeals. . . . 5 U.S.C � 504(a)(2). The government
should not be required to pay attorney's fees in a case where it
has appealed the merits of the adjudicator's decision. The
Commission's regulation was designed to implement this statutory
provision.
Before the EAJA was amended to allow recovery of attorney's
fees in Mine Act cases in situations where the demand by the
Secretary is substantially in excess of the decision of the
Commission and unreasonable when compared to that decision, it
was clear that this stay regulation concerned appeals taken by
the Secretary of the underlying decision. The former stay
regulation, at section 2704.204(b), applied if review was "sought
or taken of a decision on the merits as to which an applicant
believes it has prevailed. . . ." Only the Secretary could
normally appeal such a decision. The EAJA was amended for the
benefit of EAJA applicants to include recovery where the
applicant did not prevail but the demand made by the government
was substantially in excess of the decision of the adjudicative
officer and unreasonable. The language in section 2704.206
implements that change. The change in the statute and the
Commission's EAJA regulations was designed to expand the rights
of applicants not narrow them. I hold that I am not required to
stay this proceeding under section 2704.206(b). My holding is
consistent with the language in sections 2704.206(a) and (c).
The Secretary also relies on Dole v. Phoenix Roofing, Inc.,
922 F.2d 1202, 1206-07 (5th Cir. 1991). This case arose under
the Occupational Safety and Health Act ("OSHA"). The OSHA
Commission judge affirmed one citation and vacated another
citation. The applicant appealed the judge's decision with
respect to the citation that was affirmed. The Secretary did
not appeal the citation that was vacated. When the applicant
filed its application for attorney's fees after appeal, the
Secretary argued that the applicant was time-barred with
respect to fees related to the citation that was vacated. The
Secretary argued that the applicant was required to file its
application for attorney's fees for that citation within 30
days after the judge vacated the citation. The court of appeals
rejected the Secretary's argument. It held that the applicant
was not required to apply for attorney's fees until the
conclusion of all appeals. The court stated that there is no
final disposition in a case until the entire decision is final
and unappealable.
I find that the court's reasoning does not apply to the
facts in this case. The court was protecting the applicant in
Phoenix Roofing from having its application dismissed. It
stated that "Congress intended to make it easier, not harder,
for people of limited means to collect their small claims from
the government." 922 F.2d at 1207 (citation omitted). The
Secretary is attempting to use that decision as a sword to
delay possible fee recovery in this case when the court
intended to provide a shield to protect applicants from having
their claims dismissed. Although some of the language in
Phoenix Roofing, when taken out of context, appears to support
the Secretary's motion, I find that the decision does not apply.
The court in Phoenix Roofing was also attempting to avoid
"the unnecessary fragmentation of the fee petitions and the
waste of judicial resources that would result from filing
multiple petitions in different courts for fees incurred in one
case." Id. Dynatec is seeking attorney's fees and costs on
the basis that it prevailed in a significant and discrete
substantive portion of the underlying proceeding. It states:
The portion of the underlying proceeding at
issue in the EAJA proceeding is "significant"
in that it represents the bulk of the
Secretary's charges in terms of the number of
citations (12 of 14) and the amount of fines
($650,000 of 700,000). The portion of the
underlying proceeding at issue in the EAJA
proceeding is "discrete" in that it involves
separate orders . . . and separate standards
. . ., which are not at issue in Dynatec's
appeal to the United States Court of Appeals.
(D. Opposition at 2). Dynatec's application includes Order No.
4410468. It contends that it is entitled to fees and costs
because the penalty for that order was reduced from $50,000 to
$20,000 and the original penalty was unreasonable. The appeals
court will not increase the penalty so there is no risk that
requiring the Secretary to proceed will require it to pay more
that it would if the case were stayed. In addition, Dynatec
maintains that it is "virtually impossible, for purposes of
apportionment, to isolate the few substantially justified
positions" taken by the Secretary in the underlying proceeding
from the "morass of substantially unjustified positions." (D.
Application at 33). Thus, it is arguing that it is entitled to
full recovery of fees and expenses.
Based on the above, I find that this case does not present
a situation in which the risk of unnecessarily fragmenting fee
applications outweighs Dynatec's interest in proceeding with its
application. It is not clear that I even have the authority to
stay this case. I find that the Secretary has not presented
good cause for a stay.
For the reasons set forth above, the Secretary's motion to
stay this case is DENIED. The Secretary's answer in this case
shall be filed on or before May 24, 2001.
Richard W. Manning
Administrative Law Judge
Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203-1954 (Fax
and First Class Mail)
C. Gregory Ruffennach, Esq., 450 East 3rd Avenue, Durango, CO
81301 (Fax and First Class Mail)
RWM