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[DOCID: f:eaj-981.wais]

 
BLACK DIAMOND CONSTRUCTION INC.
December 8, 1999
EAJ 98-1


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

             OFFICE OF THE ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10TH FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA 22041


                        December 8, 1999

BLACK DIAMOND CONSTRUCTION       : EQUAL ACCESS TO JUSTICE
     INC.,                       :   PROCEEDING
               Applicant         :
          v.                     : Docket No. EAJ 98-1
                                 :
SECRETARY OF LABOR,              : Formerly WEVA 98-1
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :
               Respondent        :

                        DECISION ON REMAND

Before:  Judge Barbour

     On   November  3,  1999,  the  Commission affirmed the
administrative  law  judge's   decision  in  Black  Diamond
Construction,  Inc.,  20  FMSHRC  1169  (October 1998) (ALJ)  
and remanded  the case to provide the Applicant  the  
opportunity  to amend its Equal  Access  to  Justice  Act  
(EAJA) application to include the reasonable fees and expenses 
it incurred in defending successfully  its EAJA award before 
the Commission (21  FMSHRC _____, Docket No. EAJ 98-01 
(November  3, 1999, slip op. at 12)). (In the underlying 
decision the judge awarded  the Applicant fees and expenses of 
$14,390.25.)

     Pursuant  to  the remand, the judge ordered the  parties  
to confer and to attempt  to  reach  an agreement upon the 
amount of the fees and expenses to which the  Applicant  was 
entitled.  If the  parties were unable to agree, the judge 
requested that the Applicant amend its application specifying 
its claims and that it support the  amended  application with  
full  documentation  as required by Commission Rule 205 (29 
C.F.R. § 2704.205).

     Counsels have conferred as ordered, and counsel for the
Applicant reports the parties have agreed that a total amount 
of $29,624.29 in fees and expenses will be paid by the 
Respondent to the  Applicant.   Thus,  in  addition  to the 
original  award  of $14,390.25, the parties have agreed the 
 Applicant is entitled to $15,234.04  in  fees  and  expenses 
incurred defending  its  EAJA award.

     ACCORDINGLY, the Secretary is ORDERED to pay Black Diamond 
a total award of $29,624.29 within  30  days  of  the  date of 
this decision. Upon receipt  of  full  payment, this proceeding  
is DISMISSED.


                              David Barbour
                              Administrative Law Judge


Distribution:

Julia K. Shreve, Esq., Jackson & Kelly, P. O. Box 553,
Charleston, WV 25322 (Certified Mail)

Jack Powasnik, Esq., Office of the Solicitor, U. S. Department 
of Labor,  4015  Wilson  Boulevard,  Room 400, Arlington, VA  
22203 (Certified Mail)

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