FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

September 23, 2011

DECISION

Appearances:              Henry Chajet, Esq., R. Brian Hendrix, Esq., and Gregory M. Louer, Esq., Patton Boggs LLP, Washington, D.C., for Petitioner;

Linda M. Hastings, Esq., Office of the Solicitor, U.S. Department of Labor, Cleveland, Ohio, for Respondent.

Before:                        Judge McCarthy

            This case is before me on an Application for Award of Fees and Expenses under the Equal Access to Justice Act (EAJA) (5 U.S.C. § 504). USA Cleaning Service and Building Maintenance (USA Cleaning) filed the application against the Secretary of Labor's Mine Safety and Health Administration (MSHA) based upon the vacation of a contest proceeding (Docket No. Lake 2011-384R) that USA Cleaning brought against the Secretary pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (Mine Act) (30 U.S.C. § 815(d)).

Factual and Procedural Background

            Since 1987, Essroc Cement Corporation has contracted with USA Cleaning to provide janitorial services in the offices, break rooms, locker rooms, and bathrooms located in its Logansport facility. Pet’r Application for Fees at 1. In accordance with 30 C.F.R. § 46.11(b), Essroc provides site-specific hazard training to USA Cleaning employees that work at the mine site. Id. at 2. On February 14, 2011, MSHA issued Order No. 6497182 pursuant to section 104(g)(1) of the Act. That Order required USA Cleaning to immediately withdraw three janitors from the Logansport facility. The MSHA inspector justified this order by claiming that the janitorial staff should be classified as miners under the Mine Act and 30 C.F.R. § 46.5(a) would require them to receive twenty-four hours of comprehensive new miner training before being allowed to return to work at the plant.

            On February 17, 2011, USA Cleaning filed a Notice of Contest and a Motion for Expedited Consideration concerning Order No. 6497182. The next day, I was assigned this case and a conference call was promptly scheduled to discuss USA Cleaning’s Motion for Expedited Consideration. On February 24, 2011, after the Solicitor reviewed the case for a mere 48 hours, the Secretary vacated the contested order and USA Cleaning was free to resume work at the Logansport facility. Sec’y Answer at 4.

            The Secretary filed a Motion to Dismiss the contest proceeding on March 15, 2011. On March 21, 2011, I issued an Order granting the Secretary’s motion. My Order expressly noted that it did not address any claims or arguments about attorney fees under the EAJA.

            In its EAJA application, USA Cleaning asserts that despite several attempts to convince MSHA to vacate an alleged, clearly erroneous order, the Secretary ended her “vigorous prosecution” only after she inferred from the conference call that I may be inclined to grant USA Cleaning’s Motion for Expedited Consideration. Pet’r Resp. to Sec’y Answer at 3. USA Cleaning argued that it was a “prevailing party” in the underlying adversarial adjudication and that it met the EAJA’s eligibility requirements with regards to size and net worth of the company. Pet’r Application for Fees at 6-7. Therefore, USA Cleaning claimed $22,000 in legal fees and expenses connected to the underlying contest proceeding and subsequent EAJA action.

Disposition & Analysis

            The EAJA provides for the award of attorney's fees and other expenses to a prevailing party against the United States or an agency thereof, unless the position of the government “was substantially justified or that special circumstances make an award unjust.” 5 U.S.C. 504 (a)(1); see also 28 U.S.C. § 2412(d)(1)(A). USA Cleaning argues that the Secretary's allegation that it was non-compliant with 30 C.F.R. § 46.5 was “not substantially justified” and that it is eligible for an award under the EAJA as the prevailing party in the contest proceeding.

            The Secretary answers that USA Cleaning is not eligible for an award under the EAJA because the underlying proceeding was not an adversarial adjudication and that the inspector’s conclusions were substantially justified in law and fact. Sec’y Answer at 3-4. I need not decide the arguments outlined by the Secretary, however, since USA Cleaning does not meet the basic threshold of being classified as a “prevailing party” under the EAJA.

            In establishing the parameters of what constitutes a “prevailing party” under the EAJA, both USA Cleaning and the Secretary appear to have looked to the Commission’s decision in MSHA v. Black Diamond Construction Inc., 21 FMSHRC 1188 (Nov. 1999). In that case, the Commission allowed a contractor to recover attorneys’ fees and expenses under the EAJA when the Secretary vacated a civil penalty proceeding the day before the case was scheduled for hearing. Id. at 1191. The Commission focused its analysis on whether MSHA’s pre-litigation position throughout a rather lengthy pre-trial period was “substantially justified.” As USA Cleaning points out, the Commission’s decision in Black Diamond did not provide a firm definition of a “prevailing party” under the EAJA. Pet’r Application for Fees at 7. Rather, I infer from the Commission’s decision that a judgment on the merits was not a necessary prerequisite in establishing EAJA eligibility.

            Given the Commission’s ambiguity on the “prevailing party” status of the applicant in Black Diamond, I am wary to conclude that the Commission intended to convey “prevailing party” status on a contestant when the Secretary promptly vacates an order or citation before any petition has been filed and the issues have been joined for litigation. In Black Diamond, unlike the present case, the Secretary pursed the litigation for a considerable amount of time. After the mine was inspected, it took five months for the Secretary to file a petition for assessment of civil penalties and another three months of pre-trial proceedings and discovery before the citations were finally vacated the day before the scheduled hearing. Black Diamond, supra, at 1191.

            In the case at bar, the Secretary expeditiously vacated the 104(g)(1) Order without any of the prolonged pre-trial preparation and discovery that took place in Black Diamond. There was little time to discuss the 104(g)(1) Order since the underlying contest proceeding was initiated by USA Cleaning only a few days after the Order was issued. Once the Notice of Contest and Motion for Expedited Consideration were served on the Secretary, she promptly assigned the case to counsel and ultimately vacated the Order within a week. Furthermore, unlike in Black Diamond, there was never a joinder of the issues for litigation as the Secretary never filed a petition for assessment of civil penalty or any pleading in opposition to USA Cleaning’s Notice of Contest.

            In the decade since the Commission issued its Black Diamond decision, the Supreme Court issued a landmark decision concerning the definition of a “prevailing party” in Buckhannon Bd. & Care Home, Inc. v. West Virginia Dept. of Health & Human Res., 532 U.S. 598 (2001). Buckhannon represents a major shift in the determination of how “prevailing party” status is established. Prior to that decision, most circuits applied the “catalyst theory,” which designated a plaintiff the prevailing party “if it achiev[ed] the desired result because the lawsuit brought about a voluntary change in the defendant's conduct.” Id. at 601. However, in Buckhannon, the Court rejected the catalyst theory and found that “prevailing party” is a legal term of art to denote that a party has been awarded some relief by the court. Id. at 615-16. While Buckhannon concerned the question of “prevailing party” status under the Fair Housing Amendments Act of 1988 (FHAA) and the Americans with Disabilities Act of 1990 (ADA), courts have consistently applied its rationale in the context of the EAJA. See, e.g., Perez-Arellano v. Smith, 279 F.3d 791, 793 (9^th Cir. 2002); Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492-93 (D.C. Cir. 2003).

            The D.C. Circuit has interpreted Buckhannon as setting forth three criteria for establishing whether a party has “prevailed” for the purposes of a fee-shifting statute. Turner v. Nat’l Transp. Safety Bd., 608 F.3d 12, 15 (D.C. Cir. 2010) (citing District of Columbia v. Straus, 590 F.3d 898, 901 (D.C. Cir. 2010)). Under this three-part test, a party is classified as having “prevailed” if: (1) there is a court-ordered change in the legal relationship of the parties; (2) the judgment is in favor of the party seeking the fees; and (3) the judicial pronouncement is accompanied by judicial relief. Id.

            The D.C. Circuit most recently applied this test in an analogous case involving an application for fees and expenses under the EAJA. In Turner v. National Transportation Safety Board, shortly after two pilots appealed their suspensions by the Federal Aviation Administration (FAA), the FAA withdrew the complaints before an Administrative Law Judge could schedule a hearing. Turner, supra, at 12. The court held that where an ALJ dismisses a complaint at the request of an administrative agency, there is nothing “analogous to judicial relief.” Id. at 16. The ALJ’s dismissal was deemed to be mere “administrative housekeeping” and not judicial relief because the FAA unilaterally withdrew the complaint without the ALJ’s permission. Id. Furthermore, the court concluded that the legal relationship between the parties was not altered by the case’s dismissal. Id. at 15. The court found that when the ALJ is silent on the subject, the case is understood to have been dismissed without prejudice, thereby returning the parties to the same legal position as existed prior to the proceedings. Id. In failing to meet prongs one and three of the court’s three-part test for establishing themselves as “prevailing parties,” the court ruled that the pilots were not eligible for reimbursement under the EAJA.

            The facts in Turner closely mirror those in the case at bar. In both cases, the administrative agency requested that the ALJ dismiss the case before a hearing could be scheduled. The court’s reasoning in Turner made clear that, while the pilots did receive a favorable outcome, the resolution of the case was not enough to warrant their designation as “prevailing parties” without securing a favorable judgment on the merits or a court-ordered consent decree. Similarly, I find that the dismissal of the underlying contest proceeding as a result of MSHA’s vacation of the underlying 104(g)(1) Order in the case at bar did not convey any judicial relief upon USA Cleaning, nor did it change the legal relationship between USA Cleaning and the Secretary.

            Within ten days of issuing the 104(g)(1) Order, the Secretary promptly vacated the Order and ended any adversarial relationship between the parties. No petition or pleading responding to the Notice of Contest was ever filed by the Secretary. It has long been settled that the Secretary has the unreviewable discretion to vacate a citation or order. See, e.g., Secretary v. RBK Constr. Inc., 15 FMSHRC 2099 (1993). Thus, the Order I issued granting the Secretary’s Motion to Dismiss was simply a procedural formality that, in itself, offered no relief to USA Cleaning. Furthermore, given that I did not dismiss the underlying case with prejudice, the Secretary’s vacation of the order did not change the legal relationship between the parties. Rather, it restored both parties to the same legal status they held prior to MSHA’s issuance of the order. See Turner, supra, at 15.

            As USA Cleaning did not receive any judicial relief in the underlying proceeding, and my dismissal did not change the legal relationship between the two parties, I find that it would be inappropriate to classify USA Cleaning as a prevailing party for purposes of the EAJA. Having

failed to meet the eligibility criteria under the EAJA, USA Cleaning’s Application for Award of Fees and Expenses is hereby DENIED.

                                                                        /s/

                                                                        Thomas P. McCarthy

                                                                         Administrative Law Judge

Distribution: 

Linda M. Hastings, Esq., Office of the Solicitor, U.S. Department of Labor, 881 Federal Office Building, 1240 East Ninth Street, Cleveland, OH 44199

Brian Hendrix, Esq., Patton Boggs LLP, 2550 M St., NW, Washington, DC 20037-1350

/tjr